Conclusions and recommendations
The evidence base for the civil legal aid reforms
1. We
regret the Government's failure to carry out adequate research
into the legal aid system before introducing the reforms. (Paragraph
11)
Government underspend and access to legal aid
2. We
note that, since the introduction of the changes, the Ministry
of Justice has introduced an online eligibility calculator for
providers and a legal aid 'checker' which are welcome developments.
(Paragraph 14)
3. We recommend
that the Ministry of Justice undertake a public campaign to combat
the widespread impression that legal aid is almost non-existent.
We are surprised that the Ministry of Justice did not undertake
such a campaign at the time of the legal aid reforms given the
magnitude of the changes to legal aid. The Government has a duty
to ensure that the public are aware legal aid may be available
as this is part of its commitment to ensure access to justice
and cannot be left to legal aid providers who in any event may
not have the resources to ensure it is effective. (Paragraph 18)
4. We recommend
the Ministry of Justice and the Legal Aid Agency improve their
communication with providers on eligibility for and scope of legal
aid criteria and that they should respond to questions in a timely
manner. Failure to do so runs the risk
that a legal aid provider will not take on an individual who is
eligible for public funding, potentially denying that person access
to justice. (Paragraph 19)
5. We are not persuaded
by the Minister's contention that people may not be accessing
legal aid because they are getting all the legal advice they need
from law centres and citizens advice bureaux. As we note later
in this report, the extent of service available from not-for-profit
organisations has been diminished by the legal aid cuts and they
are struggling to meet increased demand. (Paragraph 20)
6. We conclude that
failing to provide adequate public information on the Civil Legal
Advice telephone gateway is one of the primary reasons why the
gateway is underused. The underuse of the telephone gateway is
one of the primary reasons for the underspend in debt advice as
publicly-funded debt advice is only available through the gateway.
We note with particular concern the finding from the Ministry
of Justice's research that information on the Civil Legal Advice
gateway is difficult to find online. (Paragraph 27)
7. We recommend
that the Ministry of Justice undertake an immediate campaign of
public information on accessing the gateway for debt advice, as
well as for the other areas of law it covers.
Again, we are surprised that a concerted campaign of public information
was not undertaken when the legal aid reforms were brought in
and the telephone gateway was introduced. (Paragraph 28)
8. In its response
to this report we request the Ministry of Justice update us on
its response to the recommendations in the research the department
commissioned on the Civil Legal Aid gateway.
(Paragraph 29)
9. The number of exceptional
cases funding applications granted has been far below the Ministry
of Justice's estimate. We have heard details of cases where the
refusal of exceptional cases funding to vulnerable litigants is
surprising on the facts before us. We conclude therefore that
the low number of grants together with the details of cases refused
exceptional cases funding means the scheme is not acting as a
safety net. (Paragraph 33)
10. We have seen no
evidence to substantiate the Minister's contention that criticism
of the exceptional cases funding scheme arises from a misconception
as to its purpose. We note the Court of Appeal judgment which
found that the Lord Chancellor's Guidance was unlawful, and that
three of the five litigants who had been refused legal aid should
have had their applications for exceptional cases funding granted.
(Paragraph 37)
11. The exceptional
cases funding scheme has not done the job Parliament intended,
protecting access to justice for the most vulnerable people in
our society. This is because of the failure of the Legal Aid Agency,
and the Lord Chancellor's Guidance, which was recently held to
be unlawful, to give sufficient weight to access to justice in
the decision-making process. The wrongful refusal of applications
for exceptional cases funding may have resulted in miscarriages
of justice. All agencies involved must closely examine their
actions and take immediate steps to ensure the exceptional cases
funding scheme is the robust safety net envisaged by Parliament.
(Paragraph 45)
12. The Legal Aid
Agency compounded its error in mismanaging the exceptional cases
funding scheme by failing to appreciate that the very low number
of grants compared to the Ministry of Justice's estimate was a
sign that the process was not working as Parliament intended.
Urgent investigative and remedial action was required, and in
failing to take it the Legal Aid Agency and the Ministry of Justice
were failing to focus legal aid on the most serious cases and
the most vulnerable litigants, which was their declared objective.
(Paragraph 46)
13. We were surprised
to learn that exceptional cases funding applications are not determined
by officials with specialist knowledge of the relevant fields
of law. We are particularly concerned by the impact this has on
the accessibility of the scheme for vulnerable individuals seeking
funding. We recommend the Legal Aid Agency revise the staffing
of its exceptional cases funding scheme so as to reduce the time
taken for lawyers to complete the form and so as to make the process
more accessible to laypeople. (Paragraph 47)
14. We have heard
ample evidence that legal aid is not reaching many of those eligible
for it. We do not therefore accept the Minister's assurance that
the Ministry has extensive measures in place to monitor whether
vulnerable people are able to access legal assistance. Had that
been the case it might have been expected that the Ministry would
have provided us with the results of that monitoring process to
date. (Paragraph 51)
15. The Ministry of
Justice needs to appreciate that a significant and unexpected
saving in the civil legal aid budget requires immediate investigation
as it may indicate a significant impairment of access to justice.
Our examination of the reasons for the underspend reveals considerable
weaknesses in the administration of measures intended to ensure
access to justice for vulnerable people. (Paragraph 52)
16. We question whether
pursuing an appeal in the 'residence test' case is a good use
of public money. It seems to us that the residence test is likely
to save very little from the civil legal aid budget and would
potentially bar some highly vulnerable people from legal assistance
in accessing the courts. There is no reference that we can trace
in the debates on the LASPO Bill to use of secondary legislation
under the Bill's provisions in order to introduce such a test.
We recommend that, if the Government wants to pursue this issue,
it would be better to introduce primary legislation which can
be properly debated and is open to amendment in both Houses of
Parliament. (Paragraph 56)
17. Children are inevitably
at a disadvantage in asserting their legal rights, even in matters
which can have serious long-term consequences for them. We are
particularly concerned by evidence that trafficked and separated
children are struggling to access immigration advice and assistance.
We recommend that the Ministry of Justice review the impact
on children's rights of the legal aid changes and consider how
to ensure separated and trafficked children in particular are
able to access legal assistance. We also recommend that further
consideration be given to the provision of legal aid in private
law applications for Special Guardianship Orders where applicants
are members of the extended family." (Paragraph 62)
The domestic violence gateway
18.
We note with concern the evidence from the Rights of Women survey
suggesting 39% of women who were victims of domestic violence
had none of the forms of evidence required to qualify for legal
aid. Any failure to ensure that victims of domestic violence can
access legal aid means the Government is not achieving its declared
objectives. (Paragraph 67)
19. We welcome the
Ministry of Justice's commitment to keeping the types of evidence
required to qualify for the domestic violence gateway under review
and recommend the introduction of an additional 'catch-all' clause
giving the Legal Aid Agency discretion to grant legal aid to a
victim of domestic violence who does not fit within the current
criteria. We also wish to see regular publication of figures
on grants of legal aid made on the grounds of domestic violence.
(Paragraph 68)
20. We recommend
Regulation 33 of the Civil Legal Aid (Procedure) Regulations 2012.
be amended to give the Legal Aid Agency discretion to allow evidence
of domestic violence from more than 24 months prior to the date
of the application in cases where the person who has suffered
the violence would be materially disadvantaged by having to face
the perpetrator of the violence in court. We make this recommendation
in recognition of the potential artificiality of the 24 month
time limit given the ongoing nature of familial relations that
can be the subject of court proceedings and the lasting impact
domestic abuse can have on victims. (Paragraph
70)
21. We were pleased
to hear from witnesses that the Ministry of Justice has published
helpful advice to healthcare professionals on their role in providing
victims of domestic violence with the evidence required to access
legal aid. We recommend the Ministry of Justice consider further
engagement with the representative bodies for healthcare professionals
that all relevant parties are aware of their role in the domestic
violence legal aid gateway. We also recommend that the Ministry
of Justice take measures to ensure that victims of domestic violence
are not expected to pay for the production of the required documentary
evidence. (Paragraph 72)
Sustainability and 'advice deserts' - The legal
aid market
22. We
were not impressed by the Minister's response to our concerns
about the impact of the legal aid reforms on providers of publicly-funded
legal services. We share the concerns of the National Audit Office,
concerns we raised in our report in 2011 that the legal aid reforms
were carried out without adequate evidence of the likely impact
on the sufficiency and sustainability of the legal aid market.
(Paragraph 87)
23. The National Audit
Office found that fourteen local authority areas saw no face to
face civil legal aid work at all in 2013-14, and very small numbers
of cases were started in a further 39 local authority areas. We
are deeply concerned that this may indicate the existence of a
substantial number of 'advice deserts.' (Paragraph 88)
24. We urged the
Government in 2011 to carry out research into the geographical
distribution of legal aid providers to ensure sufficient provision
to protect access to justice. Not only did the Ministry of Justice
fail to heed our warning, it has also failed to monitor the impact
of the legal aid reforms on the geographical provision of providers.
We do not know for certain if there are advice deserts in England
and Wales, and nor does the Ministry of Justice. This work needs
to be carried out immediately because once capacity and expertise
are lost the Ministry of Justice will find it difficult, and potentially
expensive, to restore them. In some areas it may already be too
late. (Paragraph 89)
Litigants in person
25. We
are concerned that it took the Ministry of Justice over a year
to publish the report on litigants in person carried out by Professor
Liz Trinder and her team. The report seems to us a thoughtful
and high-quality piece of work containing unique information capable
of informing not only Government responses to the difficulties
faced and presented by litigants in person but also those of other
stakeholders, including the Judicial Working Group on Litigants
in Person. The lack of availability of this report during our
inquiry has adversely affected our ability to have an informed
debate on this issue. Early consideration of the report could
have mitigated the £3.4million knock-on costs for the courts
from the rise in litigants in person identified by the National
Audit Office. We deeply regret the fact it took this Committee's
intervention for the Trinder report to enter the public domain.
We accept the Lord Chancellor's assurance that there was no ministerial
involvement in the delay but still require an explanation for
it. (Paragraph 95)
26. Our witnesses
agreed that there has been a rise in the number of litigants in
person following the removal of means-tested legal aid from family
and other areas of law, although the exact numbers are difficult
to ascertain. We believe, however, that it is of more significance
that the rise in litigants in person constitutes at least some
people who struggle to effectively present their cases, whether
due to inarticulacy, poor education, lack of confidence, learning
difficulties or other barriers to successful engagement with the
court process. It is vital that the difficulties of such self-represented
litigants are at the forefront of the minds of Ministers when
developing and implementing measures to assist litigants in person.
(Paragraph 98)
27. We welcome and
are grateful for efforts by court staff to assist litigants in
person as much as they are able while recognising the limitations
placed on those efforts by reductions in numbers of staff and
the opening times of court counters. (Paragraph 102)
28. We find the President
of the Family Division's judgment that the judiciary are not necessarily
able to ensure the cross-examination of victims by or on behalf
of alleged abusers is appropriate and sensitive more persuasive
than the Minister's contention that the judiciary have sufficient
training and tools at their disposal to do justice in such cases.
(Paragraph 106)
29. The family courts
make decisions which often have life-long consequences for the
children involved. The courts need the best evidence possible
to make the right decisions; this will not be achieved by putting
vulnerable witnesses through cross-examination by their abuser.
On its own this is a powerful case for ensuring such cross-examinations
do not occur and consideration of the trauma experienced by the
witness in such a case strengthens it enormously. The rise in
litigants in person in the family courts further strengthens the
case for a statutory bar. We therefore recommend the Ministry
of Justice legislate to prevent cross-examination of complainants
by alleged abusers in the family courts while ensuring justice
is done to all parties. (Paragraph 107)
30. It is surprising
to us that cases involving adults lacking capacity in which the
Official Solicitor is involved do not appear to be differentiated
from other cases by the Legal Aid Agency. Such cases, by their
very nature, concern some of the most vulnerable people in our
society, whose impaired understanding means they are barred by
law from conducting litigation without assistance. It seems to
us that access to justice for such litigants requires that such
cases should receive special consideration by the Legal Aid Agency
as these individuals cannot access the courts without the Official
Solicitor's assistance. We recommend the Legal Aid Agency adopt
a policy that ensures the Official Solicitor is able to properly
represent people without litigation capacity, given the consequences
for access to justice for highly vulnerable individuals if he
cannot do so. (Paragraph 110)
31. We were concerned
to hear that judges in some family law cases were struggling to
access the expert evidence necessary for them to determine a case
fairly due to the Legal Aid Agency approach to apportionment of
expert fees when only one of the parties is legally-aided. Given
that family courts are required to allow expert evidence only
when it is "necessary" to decide a case in the best
interests of the child we believe that, if the court says that
evidence is required and the non-legally aided party is not in
position to pay a contribution, the Legal Aid Agency will have
to take financial responsibility in order to ensure the courts
are able to try the case justly. (Paragraph 113)
32. We welcome the
announcement by the Ministry of Justice of funding to assist litigants
in person. The increase in Personal Support Units in courts will
help litigants get their papers in order and supply emotional
support at a testing time. The funding of law clinics to give
initial advice is an issue we address in depth below in Chapter
8. Even with these facilities, there will continue to be significant
pressure on the courts caused by the rise in self-represented
litigants and the courts will need to develop ways of dealing
with that pressure. We therefore welcome the work of the Judicial
Working Group on Litigants in Person. (Paragraph 117)
33. We agree with
the Low Commission that a comprehensive approach to legal information
is absolutely crucial to ensuring litigants in person are able
to represent themselves effectively. We note the Low Commission's
conclusion that Advicenow and Adviceguide are the premier online
resources and the Commission's concern that services that already
exist might be replicated unless the Government took care to avoid
this. We would like the Government to explain to us why it
has changed its approach to funding Advicenow, what its future
plans are for online advice and how it intends to ensure services
are not replicated. (Paragraph 120)
34. We recommend
the development of a one-stop legal helpline able to divert inquirers
to other services, whether online or over the telephone, or to
assist with their inquiries. In particular, the helpline should
be able to divert people to legal aid providers in cases where
legal aid is available. This appears to us to be a cost-effective
way to improve access to justice for litigants in person as well
as being a significant step towards ensuring that people eligible
for legal aid are able to access it. (Paragraph
121)
35. Moving to a more
inquisitorial legal system for some types of case would be a seismic
shift for our courts. While such a possibility should not be ruled
out, it would have to be very carefully planned and implemented.
We do not anticipate that this is likely to occur in the near
future. (Paragraph 125)
36. The very wide
range of roles undertaken by McKenzie friends presents challenges
for any attempt at regulation. Regulation of family members or
friends providing emotional support and assistance to litigants
would be absurd. Regulation of McKenzie friends holding themselves
out as quasi-legal advisors would protect the litigants they are
advising but could be viewed as giving them an inappropriate level
of authority. We are concerned that encouraging the use of McKenzie
friends may in some circumstances amount to a counsel of despair:
individuals who cannot afford properly regulated legal advice
and feel unable to adequately put their own case could find themselves
disadvantaged if relying inappropriately on people without legal
qualifications. We are also concerned by the increase in the number
of McKenzie friends in the courts. We recommend the Government
consider and consult on whether there should be formal regulation
of McKenzie friends who could be classed as engaging in professional
activity, whether fee-charging or not. (Paragraph 131)
37. The use of unbundling
to provide affordable legal services is attractive but carries
a number of risks for both lawyers and clients. We look forward
to the results of the Legal Services Consumer Panel research in
this area. (Paragraph 134)
38. We were interested
by the evidence from the President of the Family Division on the
approach adopted by the Californian courts to assist litigants
in person. We received this evidence relatively late in our inquiry
so have been unable to investigate the system in any detail but
we believe it warrants further consideration as an additional
way to improve access to justice for some litigants. (Paragraph
136)
39. The problems presented
by litigants in person are complex. We reiterate that there is
no "silver bullet" which will solve all the issues that
arise, not least because litigants in person themselves are a
diverse group with widely differing needs. Fundamentally, the
courts need more funding to cope with the numbers of self-represented
litigants appearing before them and this is an area which should
attract some of the underspend from the civil legal aid budget.
Only with assistance will the courts be able to ensure access
to justice. It is imperative that litigants in person are given
every possible assistance to make their cases clearly and effectively.
(Paragraph 138)
Mediation
40. The
fall in the number of mediations for separating couples following
the introduction of LASPO was a consequence of the end of compulsory
mediation assessment, the removal of solicitors from the process
and the inadequate attention given by the MoJ to providing clear,
reliable and easy to access advice on mediation and on the continuing
availability of legal aid. (Paragraph 149)
41. It is unclear
to us why the requirement for attendance at a Mediation Information
and Assessment Meeting before a litigant can issue court proceedings
was not included in the 2012 Act. This indicates an unfortunate
lack of 'joined-up' thinking in the preparation of the new legal
aid regime. (Paragraph 150)
42. In contrast to
its sluggish response to the shortfall in the number of exceptional
cases funding grants, the Ministry of Justice responded quickly
to the decline in the number of mediations following the introduction
of the legal aid changes by setting up the Family Mediation Taskforce
under Sir David Norgrove and adopting many, although not all,
of its recommendations. (Paragraph 151)
43. The fall in the
number of mediations in the family courts which took place after
the coming into effect of LASPO will inevitably have had a significant
impact on providers of mediation services. We were encouraged
to hear that the Legal Aid Agency has extended the contracts for
suppliers and is seeking new providers in anticipation of an increase
in mediations. We recommend that the geographical distribution
of mediation providers is kept under review to ensure all those
who need to access mediation are able to do so. (Paragraph
154)
44. The Ministry of
Justice hoped and assumed that without legal aid more people would
resolve their difficulties outside court, as a large majority
of couples already do. The fall in the number of mediations as
well as the rise in the number of litigants in person shows that
the Ministry of Justice was wrong. We recognise that the court
process is not, in many cases, an effective means of reducing
conflict between parties and presumably to reach and carry out
agreement. We strongly support the use of mediation for separating
couples where appropriate. We agree that a behavioural and cultural
change which sees the public resort to mediation in the first
instance is desirable. We would like to see the number of mediations
exceed the figures achieved prior to the unintended consequences
of the legal aid changes. We recommend the Ministry of Justice
adopt the recommendation by the Family Mediation Taskforce that
the Government fund all Mediation and Information Assessments
Meetings for a year, to encourage behavioural change. The cost
of this approach can be met from the money saved by the initial
shortfall in the number of mediations. (Paragraph 157)
Value for money
45. While
it is clearly right that legal aid be available for people facing
threats to life, liberty, personal safety or their home, our evidence
shows that the legal aid changes focused disproportionately on
the crisis point of some cases and failed to appreciate the costs
saving inherent in resolving disputes before they arrive at court.
(Paragraph 166)
46. We note in particular
the frustration experienced by housing and debt advisors when
clients stand in danger of losing their homes because of an inability
to access advice earlier due to the scope changes. (Paragraph
167)
47. The Ministry
of Justice has avoided quantifying the level of knock-on costs
arising from the reforms. Without this information the Ministry
of Justice is unable to say whether it has achieved its objective
of significant financial savings to the taxpayer. We recommend
that the Ministry of Justice conduct a post-hoc cost- benefit
analysis of the legal aid reforms. (Paragraph
168)
48. We reiterate
the recommendation from our Report on the Government's proposed
reform of legal aid: that Government departments should be penalised
for poor decision-making that leads to increased costs for
the courts system.
(Paragraph 173)
The operation of the Legal Aid Agency
49. The
reduction in the payment error rate which has been achieved by
the Legal Aid Agency is highly commendable but we do not, realistically,
think it would be imperilled by a policy decision not to investigate
the origin of tiny sums of money. The Legal Aid Agency's duty
is to administer public money responsibly, not to waste its resources
on irrelevant or de minimis inquiries. We are concerned
at the various examples we have seen of the Legal Aid Agency failing
to give sufficient weight to its vital role in ensuring access
to justice. (Paragraph 178)
Overall conclusions
50. We
conclude that the faulty implementation of the legal aid changes
contained in Part 1 of the Legal Aid Sentencing and Punishment
of Offenders Act 2012 has harmed access to justice for some litigants.
(Paragraph 179)
51. The underspend
in the civil legal aid budget should have rung alarm bells in
the Ministry of Justice. The considerable shortfall in debt advice
and exceptional cases funding grants should have received urgent
investigation. The Ministry responded swiftly to the shortfall
in mediation cases. We regret that a similar approach was not
taken in other areas. (Paragraph 180)
52. The Ministry of
Justice has failed in three of its four objectives for LASPO:
it has not discouraged unnecessary and adversarial litigation
at public expense because the courts and tribunals are having
to meet the costs of a significant rise in litigants in person
and a corresponding fall in mediation; it has failed to target
legal aid at those who need it most because it has failed to properly
implement the exceptional cases funding scheme; and it has failed
to prove that it has delivered better overall value for money
for the taxpayer because it has no idea at all of the knock-on
costs of the legal aid changes to the public purse. The Ministry
of Justice has made significant savings in the cost of the scheme
but we conclude that it could have achieved greater savings if
it had reduced the knock-on costs of the reforms. (Paragraph 181)
53. The Ministry of
Justice has achieved its primary objective of making significant
savings in the cost of legal aid in civil cases but in doing so
it has failed fully to meet three of the four objectives it set
out. It has failed to target legal aid at some of those who need
it because of the wholly inadequate implementation of the exceptional
cases scheme. It cannot demonstrate that it has achieved better
overall value for the taxpayer because it has no estimate of how
great the knock-on costs on the rest of the system have been as
a result of the changes. The changes appear at best to have had
effect in discouraging unnecessary and adversarial litigation
at public expense. (Paragraph 182)
54. There is no realistic
early prospect of substantially increased funding for legal aid
in the civil courts. This makes it even more important that the
recommendations we have made to ensure the current scheme works
properly are implemented. These include: better information from
the Government on remaining eligibility for legal aid; proper
management of the exceptional cases funding scheme so that it
works as Parliament intended; an amendment to the Civil Legal
Aid (Procedure) Regulations 2012 giving the Legal Aid Agency discretion
to grant legal aid in appropriate cases involving domestic violence;
free mediation assessments for a year; a rethink on the Legal
Aid Agency's approach in a number of areas; and careful monitoring
of the geographical distribution of legal aid providers. In the
longer term, proper research into the costs and effects of the
scheme should inform a more fundamental review of the policy.
(Paragraph 183)
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