Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by John Eekelaar, FBA (LA 29)

I am a retired Academic Lawyer, who has been written and researched in family law for over 40 years. I am Emeritus Fellow of Pembroke College, Oxford, Co-Director of the Oxford Centre for Family Law and Policy and Co-editor of the International Journal of Law, Policy and the Family.

Summary

I wish to make three points with regard to the Bill. The first concerns the unreliability of international comparisons about legal aid expenditure. The second points out that the specific provisions in the Bill concerning legal aid in support of mediation ignores the evidence presented in the Consultation Paper itself on the character of the vast bulk of family law practice and could be wasteful of time and money. The third expresses fear that the proposals concerning domestic violence could lead to the problem either being hidden or unnecessarily aggravated.

1. International comparisons on legal aid expenditure

1.1 The Secretary of State form Justice has frequently claimed that expenditure on legal aid in England and Wales is probably the highest in the world (excluding Northern Ireland). Paragraph 3 of the White Paper, Reform of Legal Aid in England and Wales: The Government Response (June 2011) states the following of the current legal aid scheme:

It is by far one of the most comprehensive, and expensive, legal aid provisions in the world, second only to Northern Ireland. We spent around £39 a head on legal aid in 2009/10, compared to around £5 a head in Spain (2008), France (2008) and Germany (2006). Countries with similar legal systems to ours also spend a lot less on legal aid: in New Zealand, the average cost per head was £8 (2004).

1.2 The European figures are calculated from the data provided by the European Commission for the Efficiency of Justice (CEPEJ). The same data, however, also show that, where the total spends on the judiciary and courts (including legal aid) are compared, the per capita spends are: England and Wales £75; Spain £86; France £57; Germany (2006) £106. We could add: Netherlands £114; Belgium £79; Sweden £73.

Figures calculated from data provided by CEPEJ:

http://www.coe.int/t/dghl/cooperation/cepej/evaluation/default_en.asp

1.3 So the different allocations of expenditure between legal aid and other aspects of the justice system may only reflect institutional differences over access to justice. Perhaps recognising this, the Secretary of States, in the Today programme, stated that the relevant comparison was with New Zealand, and not the European countries. If that is the case, one has to ask why comparison with European countries is made in paragraph 3.

1.4 Furthermore, investigation of the comparison with New Zealand shows that the cost of legal aid per head in 2009 (which is the year given for England and Wales) was £19 (information supplied by Professor Mark Henaghan, University of Otago). The figure of £8, for 2004, is therefore misleading. Furthermore, the total spend per capita in New Zealand on the Ministry of Justice, courts and judiciary in the year ended June 2009 was £109. This puts New Zealand in a similar position to the European countries.

http://www.treasury.govt.nz/government/longterm/fiscalposition/2009/15.htm

1.5 Research by Roger Bowles and Amanda Perry of the University of York published by the Ministry of Justice (Research Series 14/09) into international comparisons between countries on expenditure on publicly funded legal services and justice systems concludes with these warnings:

Making comparisons of international justice systems was complex due to significant differences in the methodology and reporting of data associated with justice systems. Therefore all comparisons in this report should be treated with care as to their interpretation. Additional analysis of data collection methodologies might have revealed alternative explanations for some of the differences found. However, this additional work was beyond the study remit.

And

Although legal aid costs were unusually high in England & Wales the same did not apply to the overall costs of the Justice System. The CEPEJ Report data reported in table 7.2 suggested that spending on courts and public prosecution were comparatively low in England & Wales. This would imply that looking at legal aid expenditure in isolation risked missing important structural differences between justice systems. But it could also be the case that this was an artefact of technical issues related to data collection.

1.6 Parliament should be aware that simply comparing the figures ascribed to legal aid expenditure proves nothing, could be very misleading, and should not be made without significant qualification.

2. Funding in support of mediation

2.1 While mediation undoubtedly has merits and has an important part to play in bringing parties to agreement, the government has persistently failed to recognise that by far the largest volume of settlements in family cases is brought about by lawyer-negotiation. This is so despite the evidence presented in its own Consultation Paper, which states, in paragraph 4.157 that, in 2008, 73% of ancillary relief orders were not contested. This level of settlement has prevailed for many years. Since mediation take-up is currently extremely low, almost all of these settlements will have been achieved through negotiation by lawyers. In fact, the actual settlement rate of all issues by lawyer-led negotiation will be much higher than 73% because many agreements will not result in any order at all. This must be compared with "the full and partial success rate" of publicly funded mediation of 70% mentioned in para. 4.71. The contrast with mediation is the more striking when it is remembered that lawyer-negotiated outcomes include resolutions to all disputes, even the most highly conflicted, whereas mediation cases undergo preliminary screening and are likely to be used only by parties who have some disposition to agree.

2.2 The culture among family lawyers of seeking settlement has been amply demonstrated by research evidence. Some of this evidence is presented in John Eekelaar and Mavis Maclean, Family Lawyers: the Divorce Work of Solicitors (2000).

Despite this evidence, the Bill provides that legal aid in ancillary matters may only be provided for legal work in support of mediation (£150), including an additional £200 for drawing up agreed orders after successful mediation. Yet if lawyers reach settlement and draw up agreed orders, no such payments are permitted. Lawyers would be bound to advise clients whom they have brought to agreement to go through the motions of mediation simply in order to attract public funding. This is nonsensical. It adds the cost of an unnecessary mediation and introduces delay.

2.3 If public funding is available for legal work leading to and consequential on achieving agreement through mediation, it should also be available where agreement has been reached without going to mediation just as it would be when reached after mediation. This will further incentivize attainment of settlements. The Bill should be amended accordingly.

3. Domestic violence

3.1 The Committee is sure to receive many submissions expressing proper concern about the proposals in the Bill concerning domestic violence. I wish to make only one observation. This is that, in its concern to ensure that public funding is provided only in cases where there is "objective evidence" that there has been, or is a serious risk of, such violence, the government will create a situation where many victims of violence will either be discouraged from raising the issue for fear of aggravating the conflict by pressing charges, seeking a court finding, or bringing in social services; or, if they overcome that fear, end up by bring about such aggravation, possibly endangering themselves and the children.

3.2 This could be avoided by allowing the Director of Legal Aid Casework to be satisfied of the presence or risk of violence by considering submitted evidence, for example, from medical practitioners, without requiring formal proceedings to be brought, or the involvement of social services. The Bill should be amended accordingly.

July 2011

Prepared 18th July 2011