Legal Aid Workshop: LASPO and Family Courts

Data collection and analysis should be seen as a valuable tool for public policy. A complete study of the effects of LASPO on access to justice, representation, and the workings of courts could not overlook this tool. However, the experience of the people involved in the process of providing legal aid and representing litigants is equally crucial for a good understanding of the very reality a dataset describes. The goal of the virtual workshop which took place at the University of Essex was to bring together researchers, theorists, and practitioners for a fruitful exchange of views. The starting point was the presentation of the project’s initial findings. What follows is a brief description of this exchange. Participants have been invited to reflect on their views in writing on this website in the near future.

Panel One: Assessing LASPO: the effects of cuts to legal aid in England and Wales

The first panel began with a presentation of some of the project’s findings. Dr Theodoros Alysandratos and Dr Konstantinos Kalliris briefly discussed the theoretical background and methodology of the study and summarized the findings as follows:

• The efficiency of courts dropped in private law cases. This could be attributed to the increased number of litigants in person.
• In private law cases, representation decreases, with more litigants representing themselves. This resulted in an increase in the percentage of self-represented litigants. For public law, the levels of self-representation remained the same (they were low to begin with). A decrease in the percentage of self-represented litigants was recorded.
• There is an indication that LASPO affects access to justice disproportionately for the less well-off.  

There is a sharp decrease in the volume of approvals for legal aid in family law cases.
Professor Lars Waldorf commented on these findings with a sharp focus on access to justice. He explained the connection between legal aid and access to justice through the lens of empowerment. His analysis was particularly illuminating, as it allowed the panel to further consider the effects of LASPO on access to justice for the less well-off, for whom legal empowerment is key.

Dr Napoleon Xanthoulis focused on the duty to provide legal aid under EU Law. After noting that the duty to provide legal aid is incorporated into the right to an effective access to a court, which is inherent to the right to fair trial, Dr Xanthoulis pointed out that the right to receive legal aid (Article 47(3)) is not placed under Title IV of the Charter relating to solidarity. Therefore, legal aid is not primarily a social assistance tool (unlike under German Law). This is relevant because the assessment of the need to grant that aid must be made on the basis of the actual person whose rights under EU law are violated - not on the public interest of society, even if that interest may be relevant for assessing the need for the aid. Two concluding points were particularly relevant: a) there is no duty to spend public funds (including for legal aid) to ensure total equality of arms; b) member-states enjoy wide margin of discretion regarding the provision of legal aid, but any limitations must be based on objective and reasonable justifications.

Panel Two: Legal Aid post LASPO – a view from practice

Liz Fisher-Frank, Lucy Davies, and Tony Fisher discussed the effects of LASPO and the points raised in the first session from a practitioner’s perspective. The rise of litigants in person in family law was the first area of focus. Liz Fisher-Frank explained the practical aspects of self-representation in family courts and highlighted the challenges faced by litigants and their impact on the justice system. Her analysis drew on her experience from the Essex Law Clinic. Lucy Davies opted for a similar approach, this time focusing on housing legal aid. Drawing, again, on her work with the Essex Law Clinic, she shed light on the impacts of cuts to legal aid on access to justice. To conclude the day’s proceedings, Tony Fisher offered an alternative viewpoint by focusing on LASPO’s impact on the legal profession. He explained how challenging legal representation has become for clients who would normally have access to legal aid. Furthermore, he explained the importance of critically assessing the issue of legal fees, as many solicitors and barristers struggle to divulge their duties due to a lack of resources.