LASPO and Access to Justice: A Practitioner’s View

Published by Konstantinos Kalliris on behalf of Nigel Humphrey's, practitioner and former Essex student who wrote this article.

Until I retired in 2016 I was a solicitor advocate practising family law, principally in the Essex Courts, and mostly on behalf of legally aided parties. During my legal career of some 40 years, I had seen legal aid chipped away by successive governments, progressively reducing eligibility, scope and rates of pay – after all, isn’t legal aid just a lawyers’ racket, fleecing the taxpayer to fund undeserving litigation? Politicians could hardly fail to notice the shrill campaigning of the popular press, reflected in voters’ priorities at the ballot box.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was the final nail in the coffin of effective access to justice, particularly affecting family law. Between 2010 and 2020 it succeeded in achieving a 40% cut in the Ministry of Justice Budget – an easy political target for the policy of austerity. Among other strategies It achieved this by:

• Excluding most remaining areas of law from the scope of legal aid
• Further reducing income and capital thresholds to exclude thousands more people from eligibility on the basis of their means
• Introducing a telephone ‘gateway’, through which non legally-qualified call handlers could screen out further thousands of cases

Significant other areas of law, including personal injury, had already been taken out of scope. But LASPO now excluded most private law family cases too. While victims of domestic violence could still apply, stringent requirements of proof, such as conviction of the other party for a relevant criminal offence, threw further hurdles in the way of those who still qualified financially.

The result? Many were denied access to advice or help, leaving the stronger party in a position to take financial advantage or to weaponise their children. The Courts became clogged with the more determined ‘litigants in person’, at sea about the legal principles involved or the procedure of the Court, and with no realistic appraisal of what they might achieve by Court process.

Contrary to much popular understanding, the principal skill of family lawyers is actually to help parties to come to an agreement, avoiding the need to apply to the Court at all. The Government’s hope that this role would be taken over by mediators was not realised – family lawyers in fact being the principal agents signposting clients to mediation.
Sadly, there seems no prospect of reversal of the evisceration of legal aid and access to justice. Its value is consistently misrepresented, and has no electoral popularity.