Heidi Alexander MP, challenging legal aid cuts, 11 November 2014

In the House of Commons last week Heidi Alexander, the Labour MP for Lewisham East, said that since the government “took the axe to legal aid” rising numbers of people representing themselves in court were “clogging up the courts, costing time and costing money”. She asked the government to reveal how many people had acted as so-called ‘litigants in person’ in the first six months of this year compared to the same period four years ago.

The government ducked the question. Justice minister Shailesh Vara said that there had always been litigants in person, even before the legal aid reductions.

(Let’s recall those ‘reductions’: The government is aiming to cut the cut the £2 billion a year legal aid budget by whopping £220 million per year until 2018.)

The minister told the House:

“The Government are putting in place measures to assist those people. Moreover, judges are working with us to ensure that they are assisted. We will continue to monitor the position and give assistance to people who are acting as litigants in person.”

A “total non-answer” according to Heidi Alexander on Twitter.

A total non-answer from the Justice Minister to my question on changes to legal aid & rise of litigants in person. Not impressed.

The Minister might easily have consulted his department's own statistics: in the first three months of 2014, the number of private law cases where both parties were represented by lawyers had halved compared to the same period last year.

I work for the Public & Commercial Services Union (PCS). Our members include court staff such as legal advisers, clerks and ushers as well as security. The PCS is one among a growing number of voices raising concerns about the disruption caused since access to free legal advice and representation was drastically reduced.

Empirical evidence tell us that cases are increasingly disrupted by people trying (and often failing) to represent themselves.

Civil legal aid cuts came into force in April 2013. How have they served justice in the family courts, where divorce cases are heard, and disputes involving children? 

The Probation and Family Court union Napo undertook some research. Before the cuts, they found that in 18 per cent of cases neither party was represented by a lawyer. By the end of 2013 that figure had soared to 42 per cent of cases.

Protests against legal aid cuts, July 2013

In his excellent essay on the legal aid cuts in the London Review of Books — ‘Necessity or Ideology?’ —  Frederick Wilmot-Smith points out that the rise of litigants in person creates problems for everyone because the system is designed for lawyers:

“Judges have to work out whether arguments made by litigants in person have legal relevance. For this and other reasons, people defending themselves take up more court time than trained lawyers would, so delaying other people’s access to court. And the evidence indicates (unsurprisingly) that litigants in person fare worse than those with legal representation.”

Lately in the Family Court at Halifax in West Yorkshire solicitor Emma Hopkins Jones represented the father in a dispute about overnight custody. The mother represented herself. Hopkins Jones, of the law firm Simpson Millar LLP, told me the case took much longer than if the mother had been represented and had been given clear advice at a much earlier stage:

“The mother didn’t understand court procedure or documents, she took great offence at my position statements making discussions at court very difficult. She couldn’t focus on issues that were relevant to the determination of my client’s application during hearings and would get upset and then retreat making negotiations impossible.”

It was six months into proceedings before the mother was persuaded by a “robust judge and an excellent Family Court Advisor” to agree to overnight contact resuming.

Our members in family courts tell us they are worried about the added distress all this is causing to children caught up in disputes between parents. The Bar Council estimates that 68,000 children annually are being affected by the removal of legal aid for family contact and finance disputes.

Before the funding cuts lawyers were more likely to be on hand in family cases to encourage clients to seek mediation and agree arrangements. This saved court time and saved public money.

Court staff tell us that proceedings are taking longer and that children’s interests can get forgotten as unrepresented parties struggle to put their case.

The cuts are loading extra work onto already hard-pressed court staff. The government’s new Child Arrangements Programme introduced complex orders which have to be completed by a Legal Adviser or District Judge in each case where there is no lawyer.

All of this results in delays which cost the taxpayer money. Children, whose welfare the courts should be safeguarding, bear the brunt.

The number of private law family cases listed for their first hearing has been reduced by a third in some courts because of the additional time taken by cases involving litigants in person.

Justice minister Shailesh Vara not answering the question, 11 November 2014

Courts used to be able to block-list two or three private law applications at the same time, safe in the knowledge that in the majority of cases, negotiations between the parties’ lawyers would result in an agreement, freeing up court time. No longer. Lack of legal representation propels people into court. So more courts are needed, but there aren’t enough staff. So criminal cases are delayed to free up capacity.

In the family courts since the cuts Legal Aid is available only if there is evidence of domestic abuse or child abuse in the last two years. That can take some proving. The Ministry of Justice has set a very high and bureaucratic threshold, requiring written proof, such as a letter from your GP (that might cost £75), or proof from a court (cost: £60).

One Legal Adviser in a family court told me: “To break free and survive domestic violence you need support, not bureaucratic obstacles.”

We can only guess at how many potential litigants in person simply feel unable to try and access justice alone.

Emma Pearmaine, a Partner and head of Family Law at Simpson Millar, has warned that many genuine victims are unable to meet the restrictive criteria: “Often this will mean a parent staying in an abusive relationship. Children living with domestic abuse are affected as a result, and this could stay with them for their whole life.”

The government’s response on Tuesday was only their latest attempt to hide or deny the scale of the problem. In October Labour’s Shadow Justice Secretary Sadiq Khan had no luck in obtaining figures for cases with no legal representations. In response to his written question, Lib Dem justice minister Simon Hughes also claimed that it was not a “new phenomenon” pointing to new support being issued by the government for separating parents and courts users. Hughes claimed it hadn’t been possible to provide figures within the available time.

Ministers are claiming that they are closely monitoring the impact of litigants in person, yet they will not give figures when asked for them.

The government must come clean about the impact their legal aid cuts are having on our courts system. Let the public see the damage.