Deep cuts to legal aid have inflicted such disarray in family courts that parents are abandoning efforts to maintain contact with their children, the Guardian has been told, while one of the main architects of the austerity measures has admitted they are “draconian”.
Protracted austerity since 2012 has reduced funding by about £950m a year in real terms, causing an alarming rise in the number of people forced to represent themselves.
The number of people receiving legal aid has fallen more than 80% in eight years. Critics say the result is unnecessary conflict and stress, and unsatisfactory justice.
The former justice minister Tom McNally, who pushed the 2012 cuts through parliament, has told the Guardian that although they were needed after the 2008 banking crash, they persisted for too long.
“If we really wanted to make substantial reforms to the criminal justice system, it was almost impossible with the continuation of austerity,” Lord McNally said. He called for a national consensus to be forged on the necessary level of legal aid expenditure.
What are the legal aid cuts affecting England and Wales?
The Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act of 2012 was not just a bureaucratic mouthful: it was a huge piece of austerity that many thousands of people in England and Wales have found hard to swallow.
The cuts in central government funding have amounted to about £950m a year in real terms. As a result, the number of people receiving legal assistance in civil (not criminal) cases has fallen by more than 80%.
As a result half of all law centres and not-for-profit legal advice services in England and Wales have closed over the past six years. In 2013-14 there were 94 local areas with law centres or agencies offering free legal services, the Ministry of Justice has confirmed. By this year, 2019-20, the number had fallen to just 47.
The figures also reveal that, between 2010-11 and 2018-19, MoJ funding for law centres through legal aid contracts dropped from £12.1m to £7.1m. The impact was caused by a double blow because removal of legal aid eligibility for many types of cases coincided with a financial crisis among local authorities, which have been forced to withdraw support for local law centres.
Who qualifies for legal aid now?
Anyone earning as little as £23,000 a year is no longer entitled to any legal aid in lower court cases. For more serious Crown Court cases, the threshold is £37,000.
Even if you get legal aid, you may have to pay 'contributions', which can escalate over the course of a case. For those who get no legal aid at all, private legal fees can run to tens or hundreds of thousands of pounds.
Around 140,000 people received legal aid in 2017/18, compared to 785,000 in 2010/11.
What is the impact of this?
More than half of all magistrates courts in England and Wales have closed since 2010, and they are now full of large numbers of people who have to defend themselves. They are known as 'litigants in person' and many find the byzantine system and procedures disconcerting and unfamiliar at best, and impenetrable and stressful at worst.
Some may lose their case because they are inadequately represented. Some may even get longer jail terms because they have no lawyer to advise them how to plea. Antagonists in domestic disputes, divorce or custody battles often have to confront each other directly in court, rather than through their lawyers.
The department suggests that the figures may reflect consolidation where law centres have closed offices but continue to deal with large volumes of legal aid work.
Mark Rice-Oxley and Owen Bowcott
Among multiple indignities inflicted by the cuts, lawyers say one of the worst is that victims of domestic violence are still being cross-questioned by ex-partners despite government pledges to end the practice.
A wide-ranging Guardian investigation has revealed that the cuts to legal aid have:
Swamped the family courts with unrepresented litigants, discouraging many from continuing with proceedings. The number of people accessing legal aid in family matters has fallen 88% in seven years.
Exposed more victims of domestic violence to cross-examination by ex-partners.
Prevented hundreds of thousands of people from pursuing justice in other areas such as housing, debt, employment, clinical negligence, immigration, welfare payments and education.
Failed to update financial eligibility thresholds, which lawyers say has resulted in few defendants in work being able to claim legal aid in criminal cases and consequently raised fears of miscarriages of justice.
Forced expert lawyers, deprived of funded work, to give up specialisms, creating “advice deserts”.
The revelations come before a Ministry of Justice (MoJ) review of the impact of the Legal Aid, Sentencing and Punishment of Offenders (Laspo) Act, which delivered the cuts.
The former lord chief justice Lord Thomas of Cwmgiedd has also spoken out about the harm caused by the law, which was intended to slice £350m off the annual legal aid budget but eventually reduced spending by almost triple that.
“Some [past justice secretaries] have agreed to huge cuts without being fully prepared to face up to the consequences of what they were doing,” Thomas said.
The cuts in England and Wales have resulted in a collapse in the number of people accessing legal aid – and a surge in the number of people forced to represent themselves – known as “litigants in person”.
The Ministry of Justice has endured deeper cuts than any other Whitehall department since 2010. Prisons, legal aid and probation all come out of a budget that will continue to shrink for two more years.
The family courts have suffered most. Penny Scott, chair of the Law Society’s family law committee and a solicitor at Cartridges Law firm in Exeter, said: “More and more parents are losing touch with their children for various reasons. If there’s a conflict about children, it’s quite difficult for people to take that on unrepresented. Despite the increase in litigants in person … there are fewer and fewer [people] going to court because they can’t face it.”
Jenny Beck, chair of the Law Society’s legal aid practitioners group, said victims of domestic violence were still being questioned by unrepresented perpetrators, particularly in findings-of-fact hearings in family courts, even though ministers had pledged to stop the practice.
“Some judges are refusing but it’s happening more often than previously because there are so many unrepresented perpetrators in the courts,” she said. “You can see the terror on people’s faces.”
McNally, who was a justice minister from 2010 to 2013 and later ran the Youth Justice Board, said legal aid could not be a “bottomless pit”. But he said he regretted that a reforming bill had been transformed by Conservative ministers into a charter for sustaining high prison numbers.
The lesson he had learned from the 1976 IMF crisis, when he was an aide in Downing Street, was that cuts should be “hard and deep” to restore confidence but not drag on indefinitely. “I said that to [Nick] Clegg and [David] Cameron,” he told the Guardian.
For the MoJ, he said, it was “always a battle in the face of continuing and draconian cuts matching up the needs of the three key services: courts, probation and prisons … There are not a lot of places to go for cuts. So we were continually running up the down escalator.”
McNally said the aim shared with the then justice secretary, Ken Clarke, was for a reforming bill that would save money by reducing prisoner numbers, but it ran into demands from No 10 to add in “punishment” to the legislation’s title.
“We put a proposal to [Downing Street] to try to manage down the prison population from 85,000 to 80,000 over the course of the parliament, because Ken [Clarke] was genuinely shocked that in between him last being responsible for prisoner numbers in the 1990s and 2010, the number of prisoners had doubled from 42,000.”
The initiative was frustrated. “When I expressed disappointment, one Conservative minister told me: ‘This has to pass the Daily Mail test.’”
Thomas, the former lord chief justice, who now chairs the Commission on Justice in Wales, said: “We have to restore advice and representation, otherwise we are undermining the rule of law. Without legal aid, people are being deprived of access to justice. I don’t believe there’s any judges these days who are not worried as to what has happened as result of Laspo.
“What saved the courts from chaos is that [the government also] cut police funding. If you restored funding to the police and they caught and prosecuted more [suspects], the courts would be in desperate trouble.”
Steve Hynes, the director of the Legal Action Group, which promotes equal access to justice, said: “Laspo is a big part of the reason why equality before the law is rapidly becoming a privilege for the few rather than a right all of us should enjoy. Cuts have reduced access to civil legal aid services to a postcode lottery in which many lose out.”
The shadow justice minister, Gloria De Piero, has obtained figures from the MoJ showing a 17% decline in legal aid providers since 2010. Some areas such as Bristol (38%), Newcastle (23%) and Manchester (22%) have suffered steeper falls.
“We can only imagine the stories behind these figures: from parents fighting for custody of their children, to people in inadequate housing, or families struggling with enormous debt,” she said. “The victims of these closures are inevitably those going through some of the worst times of their lives. We should be helping them, not removing every safety net they have.”
The MoJ is working on introducing a ban on cross-examination by ex-partners in abuse cases. It says court users are offered protective screens or videolinks.
An MoJ spokesperson said: “Ensuring everyone can resolve legal problems is vital to a just society and we are already conducting a wide-ranging, evidence-based review of our reforms to legal aid.
“Legal aid for crown court cases did not change substantially under our legal aid reforms and the number of unrepresented defendants has remained broadly stable.”
Means-testing was defended as a way of directing resources to those most in need.
The MoJ says it has spent £6.5m since 2015 supporting those who have to represent themselves in court. After years of cuts, it has also recently agreed to spend £23m giving defence advocates a 1% fee rise.
