Law Reform Commission of New South Wales

Transcription

The legal aid system was created in 1949 as part of the development of the post-war Welfare State, alongside the National Health Service. It provides funding both for legal advice and out-of-court representation by lawyers, for example in negotiating the settlement of disputes, and -- should it come to this -- legal representation in court. While the NHS provides free, universal access to medical services, access to free legal advice and representation has always been subject to a means-test and a merits-test. Although means-tested, the scheme was originally intended to reach beyond the very poorest, reaching 80 per cent of the population. However, the better-off never received entirely free legal services under the scheme: they are required to make a contribution towards the costs. And the means test has been progressively tightened up, so the scheme currently covers just over a third of the population. So, part of the welfare state, but this limited provision of legal services is a poor relation of our universal free health care and education, its overall budget dwarfed by the running costs of the NHS. And the legal aid budget is not spent on feeding so-called "fat-cat" lawyers. In 2009, the average legal aid lawyer earned £25,000. Legal aid is currently available to cover a wide range of issues in the civil and family law arena, in particular those affecting poorer members of society, such as problems relating to welfare benefits entitlements, debt and housing, and problems arising on family breakdown. However, all this is set to change in April 2013, when the controversial Legal Aid, Sentencing and Punishment of Offenders Act 2012 is due to come into force. The Act raises profound concerns about access to justice, largely removing legal aid from many of the areas of law I have just mentioned. In an era of austerity, cuts to legal aid were inevitable. But the way in which the Act seeks to make savings -- removing whole areas of law from the scope of legal aid - has attracted huge criticism from the legal professions, non-governmental organisations representing vulnerable groups who rely on legal aid, and from academics. I'm a family lawyer, so most interested in the impact of these reforms on families going through relationship breakdown. Many couples who split up need to decide where their children are going to live and how much time they are going to spend with each parent. Couples also have to decide how to divide their property and whether one is going to pay regular financial support to the other. The government's case for removing legal aid from these cases is based on the erroneous view that the involvement of lawyers inevitably means litigation. So instead of providing legal aid for legal services, they are going to fund mediation -- a process whereby one impartial person, the mediator (who may or may not be legally qualified) facilitates the parties in reaching their own agreement. Only a very small amount of funding will be available for limited legal advice to support the mediation. The government thinks that mediation will achieve cheaper, quicker and more durable outcomes than lawyer-based outcomes. But there is very little if any robust research evidence to support the claimed benefits of mediation. By contrast, we know from research that only about 10% of cases about arrangements for children after parental separation go to court. The vast majority of families currently reach agreement, many with the guidance of lawyers. By portraying lawyers as bent on litigation, the government has entirely overlooked lawyers' valuable role in managing clients' expectations, in helping them to understand what it is legally realistic for them to claim, and so in helping them to negotiate more reasonably. It's important also to appreciate that the family cases that currently reach court tend to be the intractable ones, often involving one or more parties with mental health or psychological problems, or substance abuse problems, domestic violence or some other serious imbalance of power between the parties. These cases are very unlikely to be suitable for mediation A growing, but still small, number of couples do use mediation, but the availability of full legal services for the financially weaker party creates a realistic threat of litigation should the mediation fail. This incentivises the stronger party to participate reasonably in mediation. The removal of legal aid to bring proceedings effectively removes the prospects of litigation in many cases, and removes the incentive to cooperate in mediation. In turn, this may mean mediation fails to produce just outcomes, and it is the children of these couples who will often be the losers. Without lawyers' support, we may see many more parents failing to reach agreement and going to court, where -- without a lawyer -- they will try to represent themselves. It is widely expected that that will lead to greater delays in an already overburdened family justice system, as these self-representing litigants struggle to present their cases effectively. The provision of legal aid to those who cannot afford to pay for a lawyer themselves is widely regarded as an important aspect of the rule of law -- ensuring that individuals who need legal advice and representation to protect their legal rights are able to obtain that assistance, and so to ensure that the law is given practical effect in the real world. The European Court of Human Rights has recognised that it may in some circumstances be necessary to provide legal aid in order to ensure a fair trial, as an aspect of Article 6 of the European Convention on Human Rights. The 2012 Act does recognise this, by allowing for "exceptional funding" to be made available for legal services in cases where failure to provide it would breach, or would risk breaching, the individual's rights under Article 6. It remains to be seen how generously this will be interpreted, and so whether the vulnerable people who cannot properly and satisfactorily represent themselves in legal proceedings are given the support that they need. Importantly, the Act also provides that legal aid will be made available for victims of domestic violence in relation to all types of family dispute. It is very important for those cases that the criteria used to identify domestic violence are not narrowly drafted, as that would prevent many victims from accessing legal support. An independent commission on legal aid recently said that 'legal aid is vital in protecting the rights of vulnerable people' whose lives may otherwise be left devastated. The problems that those people face are 'not only of great personal importance to the individuals involved but are of importance to society as a whole, as they are rightly problems which a forward-thinking society should strive to eliminate'. The 2012 Act effectively turns the clock backwards rather than forwards. There are widespread concerns that many of the cuts made by the Act will prove to be a false economy. The cost of not dealing promptly with people's legal problems is likely to be further costs to the state and wider society when those unresolved problems escalate. Time -- and future academic research -- will reveal the Act's true impact.