This project is funded by the British Academy.
The aim of this project is to provide an accurate picture of the effects of cuts to legal aid by looking at their impact on family law cases. The main purpose is to present an interdisciplinary data-driven methodological approach that will offer new insight in the study of legal aid.
This work aims to provide the basis for a larger comparative research project, which will compare different legal systems and bring together experts from various parts of the world. Apart from academic outputs, this research plans to make its findings available to governmental and non-governmental organizations.
In April 2013, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced cuts to legal aid. This reform resulted in a clear reduction of the overall cost of legal aid in England and Wales but, at the same time, significantly reduced the number of cases eligible for civil legal aid. The new scheme had a considerable effect on social welfare law cases. Debt cases, housing matters, and employment law cases were affected, while non-asylum immigration cases were no longer eligible. Private family law cases, which are of particular interest for this project, could be eligible for legal aid only where there was evidence of domestic violence and/or child abuse.
The reduction of the number of cases eligible for legal aid resulted in an equally impressive reduction of the number of individuals who actually benefit from legal aid. According to an article published in the Independent (‘Legal aid cuts trigger 99.5% collapse in numbers receiving state help in benefits cases’ - 31 October 2017), just 440 claimants were given assistance in the previous financial year– down from 83,000 in 2012-13, before budget cuts of almost £1bn were introduced.
This means, firstly, that legal aid was reduced to a rare luxury for most applicants. Secondly, the emerging picture suggests that many people may be denied access to proper legal aid, with largely unexplored effects on their ability to defend their claims in court and, ultimately, on the systematic protection of legal rights in England and Wales. A 2018 article in the Financial Times concluded that ‘severe cuts are putting justice out of reach for many ordinary Britons’. In 2021, the Law Society Gazette reported ‘catastrophic legal aid deserts across the country’. The issue remains particularly pressing, as the continuing media interest suggests.
Legal aid is a relatively recent development for most legal systems. The Universal Declaration of Human Rights is a useful starting point: Article 7 proclaims a universal right to equality before the law and its protection, without discrimination. The same right is reaffirmed in Article 26 of the International Covenant on Civil and Political Rights. In criminal cases, the right to free legal aid is guaranteed (subject to certain conditions) by Article 6 § 3 (c) of the European Convention on Human Rights (ECHR).
In non-criminal proceedings, the right to legal aid is derived from Article 6 (1) of the ECHR and Article 47 of the EU Charter of Fundamental Rights. However, as the European Court of Human Rights summarises the point in its Guide on Article 6, Article 6 § 1 does not imply that the State must provide free legal aid for every dispute relating to a ‘civil right’ (Airey v. Ireland, § 26). Legal aid is generally subject to a financial means and merits test. States can decide whether it is in the interest of justice to provide legal aid, taking into account, according to the jurisprudence of the European Court of Human Rights: the importance of what is at stake for the applicant (Steel and Morris v. the United Kingdom, § 61; P., C. and S. v. the United Kingdom, § 100); the complexity of the relevant law or procedure (Airey v. Ireland, § 24); the applicant’s capacity to represent him or herself effectively (McVicar v. the United Kingdom, §§ 48-62; Steel and Morris v. the United Kingdom, § 61); the existence of a statutory requirement to have legal representation (Airey v. Ireland § 26; Gnahoré v. France, § 41).
These criteria, which are firmly established in the European legal tradition, reveal, firstly, the significance of free legal aid for a truly effective access to justice for all; and, secondly, how a blanket exclusion of certain types of civil disputes from a legal aid scheme (without a rigorous enforcement of the above criteria) can be devastating for certain individuals, social groups, and the administration of justice per se. By studying the effects of LASPO on family law cases, which usually constitute the average person’s most common engagement with the justice system, we can shed light on several important questions regarding self-representation, access to legal aid, and the possibly disproportionate impact on disadvantaged population groups, including those under financial strain. We use regression discontinuity to investigate the causal impact of LASPO in these areas.
Co-InvestigatorDepartment of Economics, University of Heidelberg
Research interests: the interactions of information, groups and institutions. Recent work involves: judicial decisions taken by groups or individuals, the roots of cooperative behaviour, the role of reputation in the market for credence goods, norms and corruption and learning.