Members of parliament have criticised the government over its provision of legal aid for family cases, in a debate held yesterday in the House of Commons. The discussion, which focused on the future of legal aid for both civil and criminal cases, looked at the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), on access to justice.

The government had hoped that its removal of legal aid for private family cases would lead to an increase in the number of families using mediation to resolve issues, and unblock the family courts, however this has not been the case. Labour MP, Teresa Pearce, who took part in the debate on Thursday, told the Health and Social Care Committee that research had shown a 56% drop in people accessing mediation services since the policy change.

Andrew Slaughter MP, (Lab), who also attended the debate, was scathing about the effects of LASPO on legal aid, calling out the Ministry of Justice for failing to deliver on its promise to offer new avenues for people to access legal services. Slaughter told the Committee that what the government had done instead, was to destroy the principle that people had a right to advice and representation. Slaughter also told the Committee that the new measures had had a disproportionate impact on women, and victims of domestic violence, with a significant number of those affected unable to protect themselves as they could not apply for legal aid.

Justice Committee Chair, Bob Neil MP (Con), talked about the idea of moving away from the Family Court’s adversarial system towards a more collaborative model. As a member of the current government, he was keen to defend the government’s policy on mediation, and told the Commons that there might be room for increasing funding within the early stages of legal advice for family cases, with a view to encouraging mediation.

Karen Buck MP (Lab), and Chair for the APPG on Legal Aid, called on the government to restore legal aid in full for family cases, warning that access to justice had already been seriously compromised:

“Access to justice is as fundamental to the functioning of a good society as services such as health and education, which we more often invoke when we talk about public services. Access to justice is now being deeply and dangerously undermined. We need not just warm words, but urgent and immediate action.”

Shadow Minister for Justice, Gloria De Piero (Lab) told the Committee that if Labour were elected, the party would restore all funding for early legal advice, including early advice within the family courts. Gloria did not outline how this would be done, and whether the measure had been budgeted for by the Labour party.

Parliamentary Under-Secretary of State for Justice, Lucy Frazer (Con), told MPs that she had outlined the process in place for the government’s review of LASPO at a meeting for the APPG on Legal Aid last week. Lucy confirmed that the evidence gathering process was underway for the review, and that officials would be meeting the Family Justice Council to discuss its concerns and recommendations, and would also hold a second meeting with the Civil Justice Council to explore the Council’s recommendations too.

You can read a transcript of the debate here. 

Politicians will discuss the future of legal aid, in a debate to be held at Westminster on Thursday, 1st November. The general debate was approved by the Backbench Business Committee and will be hosted by Andy Slaughter MP and Alistair Carmichael MP.

Legal aid cuts have been an ongoing source of concern for the family justice system, which saw a drastic reduction in the availability of the support service after the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The legislation made it increasingly difficult for families to access legal support, which led to The Public Law Project mounting a legal challenge over its restrictions to legal aid for domestic abuse survivors. The government was eventually forced to back down on several clauses within LASPO, and extend the list of documents victims of domestic violence had to produce in order to qualify for legal aid.

In 2017, the Ministry of Justice also scrapped the five year time limit for producing evidence of domestic violence, and in October of this year, a judicial review ordered the government to amend the Civil Legal Aid (Procedure) Regulations 2012, so that legal aid certificates could be backdated. The change allowed lawyers to continue representing clients while waiting for legal aid certificates to be processed.

This week’s debate will be held in the Grand Committee Room at Westminster Hall. Further details should be released within the next 48 hours, so we will update you as soon as we have them. Members of the public are able to attend this event, but for those who can’t attend, the debate can be watched live on Parliament TV.  A complete transcript will also be available three hours after the debate on Commons Hansard.

Welcome to another week.

The government has agreed to amend the law so that legal aid certificates can be backdated to the date when the application for legal aid was made.

The decision comes after a successful judicial review into the Legal Aid Agency’s refusal to backdate legal aid certificates. The current system means that lawyers often have to carry out work before the Legal Aid Agency has granted a certificate, in  order to secure clients’ access to justice.

The government will amend the Civil Legal Aid (Procedure) Regulations 2012 to allow legal aid certificates to be backdated to the date of application for legal aid.

When the government announced that victims of domestic violence would need to provide courts with certain types of evidence  before being able to apply for legal aid, there was understandable concern and criticism towards the move.

Domestic violence as a phenomenon is largely invisible because many victims are too frightened to seek the medical or emotional help they need, which makes gathering evidence often impossible. Concerns deepened when it became apparent that the restrictions on legal aid access were placing even more women and children in danger. 

The result was a challenge by Rights of Women and The Public Law Project in 2014, which accused the government of restricting access to justice by forcing victims to produce specific documents showing harm. Regulation 33, which sets out the kinds of evidence victims of domestic violence have to produce in order to get legal aid, was shutting out people in need.

Then, in February 2016, the Court of Appeal ruled that Regulation 33 was unlawful.

As a result the government is now carrying out a review of the current evidence requirements for domestic violence in private family law cases and they would like to hear your thoughts.

The survey is open to everyone, and closes on Friday 1st July, 2016. Please take the time to fill it out and pass it on to anyone else you feel might like to contribute, if you can, from victims of domestic violence, to charities, lawyers, judges and anyone else interested in legal aid and Access To Justice matters.

We’ve added some useful links below:

• Law Gazette Article About The Review
• The Survey
• Domestic Violence Evidence Requirements – Update, April 2016 (In Response To the Rights Of Women case)
• What The Update Means And How It Changes The Current Requirements
• Legal Aid For Family Law Matters 
• Current Accepted Forms Of Evidence If You Have Been A Victim Of Domestic Violence
• Legal Aid If Your Child Is At Risk Of Abuse

Setting aside for a moment the fact that Legal Aid is hardly accessible these days, to anyone, it’s been a good day in court for the support service, as judges overturned a government plan to restrict access to it further by imposing a residency test on people in need of legal support.

The residency test would have prevented people from accessing legal aid if they had not lived in the UK continuously for 12 months and could have affected newly arrived migrants and their children. The test, backed by Justice Secretary Michael Gove, was summarily thrown out in a unanimous Supreme Court ruling and unusually, the ruling itself was delivered only minutes after recess yesterday.

The Supreme Court took the view that the government would be acting ‘ultra vires’, or beyond its own powers if it decided to proceed with the residence test. However, the government could push ahead and try to enforce the policy by presenting a Bill to parliament with the measures, in full.

So, whilst the battle to save what’s left of legal aid is not over, the ruling represents an important stand against the erosion of civil justice and human rights in the UK.

Watch this space.

In what will be a fascinating hearing, a new case raises important questions relating to accessing legal aid for abuse of power claims against the police. In an already fraught economy, with a government hell bent on cutting welfare budgets and legal aid down to its last wick, this case, at its heart, is all about economics.

The facts of the case are as follows: Ms Sisangia wished to bring proceedings against the Commissioner of Police for the Metropolis for false imprisonment and assault arising out of her arrest and detention in 2011. Her request was refused twice, and on the second occasion, on the ground that she had not shown the proposed action was within the scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”) and in particular paragraph 21 of Schedule 1 to that Act.

Ms Sisangia’s claim to pursue legal aid was eventually allowed, but concerns about the wider implications of allowing people to claim for legal aid in this context were raised, and so an appeal was brought by Matthew Coats, the Director of Legal Aid Casework (who initially refused Ms Sisangia’s request to access legal aid).

This appeal has been allowed, though we do not yet know the date of the hearing. It will be interesting to see which points will be raised in relation to The Director’s concerns, but we feel this appeal is driven by concerns over whether permission to access legal aid for cases involving false imprisonment and the police may open a floodgate, which the government, and The Director of Legal Aid Casework, will be keen to avoid. This case is relevant to the family justice system because the police work closely with social workers and families involved in the court system and there are potentially instances where police conduct, particularly with vulnerable families, could be construed as abuses of power.

What do you think? Is this appeal motivated by money, or have we missed a finer point?

If you have a moment, the discussion in the judgment on the definition of abuse of power is worth a read, not least of all because there is no set definition that exists (interesting reasons for that apparent omission are offered in the text).

Many thanks to Maggie Tuttle for sharing this case with us.