Wednesday, April 18, 2012

LASPO: What will the options be for those who can't afford representation?

I'm afraid I never really got that excited about the progress of the Legal Aid, Sentencing and Punishment of Offenders Bill ('LASPO') through parliament, probably because the virtual ending of legal aid for private family matters was always really a fait accompli. OK, there was a Government concession yesterday for victims of domestic violence but, in the scheme of things, I would hardly call that 'major'. The Bill still has some 'ping-ponging' to do between the Commons and the Lords before it reaches its final form, but I'm sure that my initial pessimism will be justified.

The question, then, is: once LASPO comes into effect, what will be the options for those who cannot afford representation? Well, unless firms are prepared to offer some sort of 'no win no fee' scheme for those cases involving money (and many family cases do not), then it seems to me that there are really only two:

Do it yourself: As someone who has written a do it yourself guide to divorce, you might think that I am enthusiastic about this. However, as I point out in the book, there are times when matters can become so complex that proper legal advice is required. Of course, there are plenty of ways to seek some advice, including free or one-off interviews with a solicitor (although any advice given in such interviews is likely to be only general, not specific to the case), through the internet (with the risk that the advisor may not be competent to advise) and from the local Citizens Advice Bureaux (again, general advice only). Imagine, though, the wife who can't afford representation in a complex financial remedy claim coming up against the high-powered lawyers that her husband has instructed, and it is easy to see that irrespective of what advice she has obtained, without proper representation she will always be at a serious disadvantage.

There is the possibility of instructing a McKenzie Friend, but I suspect that post-LASPO the demand for experienced McKenzie Friends will be such that their availability will be extremely limited.

Mediation: The Government's great white hope. Yes, I'm sure that it will be possible for more cases to be settled through mediation. I remember when I was practising I would inform every client of the possibility of mediation, but few were interested, and most of those who tried it were not impressed. Such attitudes were and are being addressed by increased awareness and, hopefully, better trained and more experienced mediators.

However, I often wonder whether Messrs Clarke, Djanogly & Co understand just how awkward many people going through family disputes can be. In many cases, mediation will be little more than throwing a teacup of water at an inferno. It's all very well the Ministry of Justice constantly promoting the benefits of mediation (the latest example appearing just today) but, as has been said many times before, mediation is not, and can never be, a panacea. No matter how enthusiastic one party is, mediation is worthless if the other party does not want to cooperate.

The outlook for those who will not be able to afford representation is, I'm afraid, bleak.


  1. i know it's not really your area, john, but the bill will be a disaster for anyone who needs to use a law centre for any form of advice. the lethal combination of the telephone gateway ('press one if you don't know where to start; press 2 if you don't understand what this message just said; just scream if you have just been evicted and your landlord has nicked your phone and if you want family advice feel free to bugger off and negotiate with your abusive husband because we hate you as well') and the removal from scope of vital areas like disrepair and benefits will spell the end for many law centres. they will further clog the CAB and of course those who need but simply can't afford legal advice will be more screwed than ever. lord pannick was hopeful that the lords amendments ameliorated some of the worst aspects of part one of the bill. but as we all expected, the government has simply reversed them.

    no hope til we kick the bastards out. and i hold no special hopes that an incoming labour government will save us either. very, very depressing for those of us who work pro bono or at rates much lower than solicitors would earn elsewhere because we believe in access to justice for all.

    1. Thanks for that, SW. Very depressing indeed.

  2. 'thanks' in the 'thanks for that pleasant and refreshing kick in the nuts' sense of the word. at least v&g will survive. small mercies, eh?

  3. Northern Lights19 April 2012 at 23:55

    Forgive me if I've missed something obvious but does the provision of legal aid in cases of DV only apply to the party making the allegation or will the other party also be entitled?
    If not, there is a serious undermining of the principle of equality of arms.

    1. I think that's right, although if I recall correctly it was always difficult for the respondent to get legal aid, unless they were threatened with loss of their home.


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