Sunday, 15 April 2012

Legal Aid Bill - Ping Pong Time

The Legal Aid, Sentencing and Punishment of Offenders Bill enters the Ping Pong stage in the House of Commons this week. The House of Lords defeated the Government on 10 separate clauses in March, as I discussed at the time. Now we'll find out what the House of Commons has to say in response, so this is a good time to rehearse some of the many many arguments against these savage cuts to the family law legal aid budget. (For a longer analysis, see this great piece by Joanna Biggs from the LRB back in October.)

So, legal aid in family cases - what is it and why does it matter? The first thing is to know how much money we're talking about here. There is this often-quoted figure of £2.1bn spent on legal aid every year - it's true, but only about £600m of it is spent on family work, split roughly £350m for child protection cases and £250m for other family work. The huge bulk of legal aid - about £1.2bn - goes on criminal work, and the increase in the cost of that over the last 20 years has been mainly caused by over-zealous governments creating more and more complicated criminal law.

The government says that our legal aid system is the most expensive in the world. Well, that's only true if you look at misleading figures. As my colleague John Eekelaar demonstrated, when you take into account the total costs of delivering justice (including legal aid, court costs, judges' salaries, enforcement, and so on), our system is about average. That's because spending money up front on legal aid helps to save money later - cases are resolved quickly and (as I discuss later in this post) most cases are kept well away from court, leaving judges to focus on the really hard cases. So cutting £350m from the legal aid budget might actually make our legal system more expensive as it becomes less efficient!

Next, we need to understand who the people are that get legal aid at the moment. The answer is that really very few people get it. There are three main categories of family case that get legal aid, namely:
  • cases involving a local authority where a child is being, or is at risk of being, abused or neglected
  • cases between separated parents about the upbringing of their child
  • cases about the separation of adults where there is a dispute about financial issues 
But of the people involved in these cases, very few get legal aid now. The eligibility criteria that the Legal Aid Board uses combines both a means and a merit test. The means testing asks about your income and savings, and the merit test asks about whether the case is likely to succeed. And the means testing is strict - your ability to get legal aid relies on your having less than £3,000 of savings and an income of less than £2,300 per month and having less than £302 of disposable income per month. Almost everyone I know fails on at least one of those criteria. And even if you meet those criteria on the means side, the Legal Aid Board still has to be convinced that you are likely to win your case.

So what we are talking about here is providing money to pay for legal advice for people with very little money and where the law is likely to provide a solution to their problem. And what's more, people in the third category of family case (cases about financial orders, where there might be some money floating around at all), the money is a loan, not a gift. There's this thing called the 'statutory charge', which means that if someone keeps or gets money or property as a result of getting legal aid, they are required to repay the Legal Aid Board from that money or property. So lots of the legal aid money that we currently give out we actually get back again - which makes you wonder why the government is wanting to abolish that part of legal aid. That part of legal aid, at least, is very cheap indeed.

As I explain more fully in my book that comes out in August, family law is about justice. Family law often gets a degree of ribbing from colleagues who work in other areas of the law because it involves so much 'discretion' (meaning, fact-sensitive decision-making) and few hard-and-fast rules. But the lack of hard-edged rules doesn't meant that family law isn't law - it is. It is the law of people's intimate and personal lives - as John Dewar wonderfully put it in 'The Normal Chaos of Family Law', it is about love, passion, intimacy, commitment and betrayal - and what could be more important?

Around all of that emotion and life, though, people have legal rights. When we think that a child is being abused or neglected, the child has rights, but so do the other family members. I think that's easy enough to understand, which perhaps explains why the government wants to keep child protection cases within the scope of legal aid funding. But private law family cases (that is, those between family members and not involving the state) involve rights too, and they too are about justice.

When spouses divorce, for example, it is not a matter of one person's charity or generosity that he or she has to pay maintenance or transfer property to the other person - it is because the other person has a legal right to take a fair proportion of the fruits of the family to start on the road towards independent living (as Lady Hale put it in Miller v Miller).

So to remove legal aid from family cases is to say to the poorest amongst us that the law and justice are not available for them. Only those who can already afford it can get the legal help that is necessary to make legal rights meaningful. In the context of family financial disputes, this is tragically ironic - the fact that a woman (usually) is poor means that she will be unable to access the courts in order to get money from her former husband to make her less poor. How can any society in good conscience think that this is an acceptable way to go about things?

The government seems to think that the answer to all these problems is for people to be more reasonable and, if that fails, to mediate. Well, I think we can all agree that life would be easier if people were more reasonable, but that isn't really an attainable goal for social policy. Leaving that aside, though, there are two things that this argument misunderstands.

The first thing is that only about 10% of separating couples go to court to litigate about their financial arrangements or about their children. Looking at those people, they often involve very high conflict, domestic violence, drug or alcohol abuse, or mental health issues - in other words, issues that make 'reasonableness' a rare commodity. So if you want to evaluate the family justice system overall, you need to take into account the vast majority of cases that are negotiated and settled away from the courtroom.

The second thing links to the first, namely that the government's contrast of "lawyers bad" with "mediators good" is a huge distortion of what family lawyers actually do. Research has shown time and time again that family solicitors and barristers spend the vast majority of their time negotiating, cajoling their own clients and 'the other side' towards agreements and away from court whenever possible. Many family lawyers are trained as mediators in addition to their legal qualifications. But the key thing is, if you are negotiating with a lawyer's help, you know what your legal rights are.

A lawyer won't let you agree to something that is a really bad deal for you and significantly outside the range of options that a judge might find acceptable. Whereas if you go to mediation without a lawyer and without understanding your legal rights, you have no safeguard against being pushed towards a deal that does you out of things you are legally entitled to have. Such risks are especially high for the person with less bargaining power, which, in family law cases, is often women and children.

So let's summarise. Legal aid for family cases is really quite cheap. It only goes to those who have very little money and a case that they are likely to win. And the government's supposed 'answer' to the damage that cutting legal aid will create simply flies in the face of reality. In other words, the Legal Aid Bill should be opposed on grounds of both principle (society should pay to ensure that the legal rights of its poorest citizens are protected) and practice (the government's proposals will cause chaos in the family courts).

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