Access to Justice in England and Wales: Are Civil Legal Aid Reforms

Undermining the Constitutional Imperative of the Legal Aid Scheme?

Table of Contents

Introduction

Chapter 1 – Access to Justice and the Legal Aid Scheme

A. Access to Justice in Civil Disputes

B. Adversarial Courts, Legal Assistance and Historical Systems of Legal Aid
C. The Modern Legal Aid Scheme

Chapter 2 – Access to Justice and the Legal Aid Scheme Post-LASPO

A. Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’)

B. Justice Denied: Indigent Litigants, Advice Deserts and Self-Representation
C. Post-LASPO: A Return to Discretion and Charity

Chapter 3 – Possible Reforms

A. Reinvent the Legal Aid Scheme?

B. Establish a National Legal Service?
C. Transplant an Inquisitorial Court System?

Conclusion
 Introduction

Background

Rooted in the rule of law’s premise that a society governed by law must ensure its laws are
equally enforceable by all members, access to justice is a constitutional right of every citizen
in England and Wales that may only be limited by the unambiguous intention of Parliament. 1
In the context of English adversarial courts, the effective enforcement of this right ‘renders
assistance by skilled lawyers in many cases indispensable’. 2 Historically this meant that
justice for indigent litigants in civil legal disputes against other citizens depended on
problematic systems of legal aid providing access to legal assistance on a discretionary and
charitable basis. The modern legal aid scheme, enacted by the Legal Aid and Advice Act
1949, sought to remedy this by making 80% of the population eligible for state-funded legal
assistance as of right.3 This was the ‘constitutional imperative’ of civil legal aid and the legal
aid scheme.4 The Attorney-General of the time defined it as ‘the charter of the little man to
the British courts of justice… which will open the doors to the courts freely to all persons
who may wish to avail themselves of British justice without regard to the question of their
wealth’.5

This imperative is now overlooked as civil legal aid is again considered expendable,
epitomised by claims that it ‘has to compete with all the other calls on public funds’ 6 and
encourages citizens to engage lawyers ‘whenever they face a problem’. 7 These
misperceptions have contributed to recent reforms under the Legal Aid, Sentencing and

1
R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51, 71-76 (Lord Reed)
2
EJ Cohn, ‘Legal aid for the poor’ (1943) 59 Law Quarterly Review 250, 251
3
Richard Morgan, ‘The Introduction of Civil Legal Aid in England and Wales 1914-1949’ (1994) 5 Twentieth Century
British History 38, 67
4
Mark Elliot, ‘Civil legal aid as a constitutional imperative: A response to Lord Sumption’ Public Law for Everyone (2018)
<[Link]
accessed 15 January 2019
5
HC Deb 15 December 1948, vol 459, col 1221
6
Lord Sumption, ‘Keynote Speech, Annual Bar and Young Bar Conference’ Supreme Court (2018) 6
<[Link] accessed 9 May 2019
7
Ministry of Justice, Proposals for the Reform of Legal Aid in England and Wales (The Stationary Office Limited 2010) 3

1
Punishment of Offenders Act 2012 removing most legal areas from the scheme’s scope and
restricting eligibility to just 25% of the population.8

Thesis and Roadmap

In this dissertation, I argue that these reforms are undermining the legal aid scheme’s raison
d'être, its ability to safeguard and ensure access to justice for all members of society, that
underpins the provision and which necessitated its creation.

In the first chapter, I justify access to justice as a constitutional right in civil disputes before
examining the importance of legal assistance in the effective enforcement of this right,
problems with historical systems of legal aid as charity and the significance of the modern
legal aid scheme established in the mid-20 th century. In the second chapter, I review the
impact of reforms implemented in 2012 and argue that the present-day legal aid scheme is
failing in multiple ways and risks making justice dependant on discretionary and charitable
modes of aid again. In the final chapter, I explore three different reforms going forward. The
term ‘civil disputes’ refers only to legal areas that govern relations between citizens as it is
outside the scope of this dissertation to also analyse legal aid in criminal or administrative
disputes against the state in the necessary depth.

Chapter 1 – Access to Justice and the Legal Aid Scheme

8
Joint Committee on Human Rights, ‘Enforcing Human Rights: Tenth Report of Session 2017-19’ (Parliament Publications
2018) 14

2
 A. Access to Justice in Civil Disputes

Access to justice as a normative ideal is considered indispensable in liberal democracies

yet difficult to define because it is ‘capable of meaning different things to different
people’.9 Tom Cornford identifies two relevant interpretations. First, as societies
increasingly embed social, economic and human rights into positive law, the modern
state is under a duty to provide effective access to a court system where citizens can
enforce those rights against the state and against each other. 10 Access to justice becomes
a social justice mechanism used ‘to combat the disabling effects of sources of social
exclusion such as racism, poverty, educational impoverishment and gender’, not a
constitutional right in itself but one of the ‘ways of making constitutional rights real’. 11
Whilst this view has merit as people regularly face ‘justiciable’ issues that can cause
significant problems if left unresolved, 12 it is deficient because comparing access to
justice to other social rights or securities undervalues its importance and wrongly leaves
it susceptible to compromise. If, for example, there is a choice between better healthcare
and a more robust court system, the latter will be vulnerable. 13

The importance of access to justice is better captured by the second interpretation, which
argues that it is essential to the rule of law and a fundamental or constitutional right on
its own terms.14 An initial problem with this approach is that the nexus between the rule
of law as a constitutional principle and non-public law areas is questionable. The rule of
law is highly contested with competing formal and substantive conceptions but there
seems to be a consensus in the literature that it is ‘essentially a public law doctrine’, 15
concerned with constraining the state’s power and inapplicable to private disputes
amongst citizens.

For example, whilst Joseph Raz in his formal definition says the rule of law does not
concern the content of a country’s laws, as combining it with principles such as
9
Asher Flynn and Jacqueline Hodgson citing Ronald Sackville (2002) in Comparative perspectives on Unmet Legal Need
(Hart Publishing 2017) 6
10
Tom Cornford, ‘The Meaning of Access to Justice’ in Palmer and others (eds), Access to Justice: Beyond the Policies and
Politics of Austerity (Hart Publishing 2018) 31
11
Roger Smith, Justice: Redressing the Balance (Legal Action Group, 1997) 9
12
Hazel Genn, Paths to Justice: What People Do and Think About Going to law (Hart Publishing 1999) 12
13
Cornford (n10) 34
14
Ibid 28
15
Lisa Austin and Dennis Klimchuk, Private Law and the Rule of Law (Oxford University Press 2014) 1

3
substantive justice diminishes its own impetus, but merely requires laws to be
prospectively enacted, clear and stable, and enforced by independent courts, this is
followed with the enforcement being free from ‘administrative’ discretion. 16 Similarly,
AV Dicey defined the rule of law as the primacy of ordinary laws over arbitrary power,
equality before the law and the laws enforced by independent courts, 17 with all three
constraints concerning the power of the executive. Substantive conceptions, which
propose that laws must additionally be just as otherwise the rule of law loses its
normative value, also view it primarily as a ‘principle of constitutional governance’. 18

However, as Lord Reid articulated in Unison, the rule of law necessitates access to
justice in all legal disputes. 19 This is because at its core the rule of law requires a society
to be governed by democratic laws whose terms apply to every citizen, a requirement ‘all
versions of the doctrine [formalist and substantive] have in common’. 20 In England and
Wales the Parliament, composed of elected MPs, makes such laws and courts enforce the
law. The courts can only do this, and prevent laws from becoming ‘dead letter, the work
done by Parliament… nugatory, and the democratic election of [MPs]… meaningless’, if
all citizens can access them. 21 Access to justice therefore gives effect to the rule of law,
the will of parliament and the basic conception democracy itself, making it a
constitutional right ‘even in our unwritten constitution’. 22 It requires that courts are
equally accessible to all citizens to effectively enforce the laws that govern them, regardless
of whether against the state or against other citizens, by obtaining a remedy from an impartial
and independent judge.23 The next section examines the role of legal assistance in realising
this right and problems with the historical systems of legal aid that existed before 1949,
before analysing the constitutional significance of the modern legal aid scheme.

B. Adversarial Courts, Legal Assistance and Historical Systems of Legal Aid

16
Joseph Raz, ‘The Rule of Law and its Virtue’ (1977) 93 Law and Quarterly Review 195, 214-215
17
Albert V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (St. Martin’s 1961) 42
18
Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law’ (1997) Public Law 467, 487
19
Unison (n1)
20
Cornford (n10) 28-29
21
Unison (n1) 68
22
R v Secretary of State for the Home Department, ex parte Leech [1994] Q.B. 198, 210 (Steyn LJ)
23
Attorney General v Times Newspapers Limited [1974] AC 273, 309 (Lord Diplock)

4
Whilst access to justice has been enshrined in the UK since the Clause 40 of the Magna
Carta (1215) proposed that ‘to no one will we sell, to no one will we deny or delay, right or
justice’, in practice it was unavailable to many. For example, ‘ill-treated or deserted wives’
were left stranded by the law as divorce was not a legal right until the Matrimonial Causes
Act 1857 and even then it was only available in the High Court in London. 24 The lack of
substantive rights and geographical barriers notwithstanding, a more nuanced impediment has
been effective access to justice. In the legal context this depends on successfully navigating
the conflict resolution process and procedures of a country’s court system. 25 There are two
main court systems. In inquisitorial courts, prominent in continental Europe, conflict
resolution is relatively uncomplicated as the disputing parties support a trained judge as she
actively investigates the relevant law and facts of a dispute to reach a decision.26

In the adversarial court system of England and Wales, however, it is much more complex as
the parties must themselves present the facts to an observant judge in an attempt to persuade
her through argumentation.27 Moreover, as the legitimacy of a court’s decision requires it to
be as close to the ‘truth’ of the dispute as possible, 28 in adversarial proceedings this
responsibility is also primarily placed on the litigant as the judge’s role in discovering the
truth lies in arriving at a decision that best represents the case presented in court. 29 These
peculiar characteristics mean that under English law ‘skilled help given to a person concerned
to maintain his or her rights… has existed as long as the law itself’.30

The contemporary legal profession came to prominence as trial by jury took over from
ancient methods such as trials by battle and ordeal and was used in every civil case until the
mid-19th century.31 A trial by jury required the facts of a dispute to be argued by the parties in
a single event, as the jury could not be present for long periods of time, and the
argumentation had to convince the common man of the truth. Whilst this was intended to

24
Stephen Cretney, Family Law in the Twentieth Century (Oxford University Press 2005) 274
25
Jeremy Lever, ‘Why Procedure Is More Important than Substantive Law’ (1999) 48 Comparative Law Quarterly 285
26
Ellen E. Sward, ‘Values, Ideology and the Evolution of the Adversary System’ (1989) 64 Indiana Law Journal 301, 304
27
Ibid
28
Ibid
29
Ibid 305
30
Seton Pollock, Legal Aid – The First 25 Years (Oyez Publishing 1975) 5
31
Lever (n25) 320

5
make the process fairer by providing more control over the outcome to the parties and
distributing decision-making, it in fact advantaged those with better oratory skills, theatrics
and experience of the process, rendering ‘what actually happened… irrelevant unless it was
accurately depicted at the trial’.32 Litigants who could not effectively present their case were
allowed ‘pleaders’ or ‘champions’ to do so on their behalf and this group eventually
commercialised, being hired by those who could afford them to enhance their chances of
convincing the jury.33

In other words, legal justice was historically denied to litigants who could not afford such
assistance in disputes against wealthier opponents with representation. John Maguire
illustrates this by citing comments in an early manifestation of courts of equity during 1292-
1333.34 One applicant complains about the law that she ‘can get no justice at all, seeing that
she is poor and [the other party] is rich’, whilst another says ‘And I pray to you, for your
soul’s sake, that you will give me remedy of this, for I am so poor that I can pay for no
counter (lawyer).’ To return to the example of divorce, when the Matrimonial Act 1857 made
it a legal right the court proceedings cost £45 with the annual average wage being £50 at the
time.35 However, if the divorce was contested and necessitated legal assistance it cost three
times as much.36

The jury is now rarely used in non-criminal disputes but its role as the ‘referee’ and the part
played by ‘pleaders’ has passed on to judges and lawyers respectively. 37 The rationale also
remains the same, that by allowing the parties or their proxies to investigate and argue their
own case not only is truth more likely to be discovered, as the judge is provided information
from both sides to inform the decision, but the argumentation process itself ensures
procedural fairness and protects the autonomy of litigants by ultimately making them
responsible for the outcome.38 These claims are contentious. It can be argued that adversarial

32
Lever (n25) 297 (emphasis in original)
33
Sward (n26) 322.
34
John Maguire, ‘Poverty and Litigation’ (1914) 36 Harvard Law Review 361, 367-368
35
Steve Hynes and Jon Robins, The Justice Gap: Whatever happened to legal aid? (Legal Action Group 2009) 11
36
George Behlmer, Friends of the Family: English Home and Its Guardians, 1850-1940 (Stanford University Press 1998)
190
37
Lever (n25) 297
38
Sward (n26) 316-317

6
traditions potentially enable parties to hide the actual truth to get a ruling in their favour, 39
and the autonomy of the weaker or less well-funded party is supressed from the outset. This
context has nevertheless transpired to make ‘our courts… still too often inaccessible and
incomprehensible to ordinary people’,40 necessitating legal assistance and equality of arms to
effectively enforce legal rights.

The first legal aid legislation that attempted to provide such assistance to the poor was the in
forma pauperis statute (Poor Person’s Act),41 which operated from 1495 to 1914. This system
of legal aid allowed judges to waive court fees for poor litigants, protected them against costs
recoverable by the other party, and, importantly, gave them power to compel a lawyer to
represent the litigant for free.42 However, in forma pauperis was ineffective in practice for
several reasons. First, it was charitable in nature without any funding or support from the
state. This gave judges complete discretion on when to apply the provision and regularly led
to situations where legal aid was retracted upon any violation of a ‘court’s ideas of
propriety’.43 For example, in Taylor v Lowe (1733) the litigant was ‘depaupered’ and asked to
pay full costs because he decided against proceeding to trial after bringing an action and did
not in the judge’s opinion provide a valid reason for changing his mind.44

Secondly, applicants worth more than a fixed amount of £5 could not obtain legal aid,
regardless of whether their liabilities exceeded that amount and even if litigation was
expected to cost much more.45 This resulted in cases such as Ridgway v Edwards (1874),46
where the litigant was denied assistance because he owned a crop of land worth that amount
despite having no other wealth and that land being the subject of litigation. Thirdly, until

39
Ibid 317
40
Richard Moorhead and Mark Sefton quoting Lord Woolf (1995) in Litigants in person: unpresented litigants in first
instance proceedings (Department for Constitutional Affairs 2004) 1
41
11 Henry, VII C.12
42
Maguire (n34) 373-374
43
Ibid 374
44
93 E.R. 983
45
Maguire (n34) 376
46
1 WLUK 55

7
1883 legal aid was restricted to applicants and not respondents, resulting in reluctant litigants
who could not access legal assistance to defend themselves against a claim.47

Lastly, to limit vexatious claims legal aid was only issues after the litigant obtained a
certificate from a lawyer stating that her dispute had merit. Maguire notes that this is ‘one of
the best imaginable illustrations of a vicious cycle’, 48 as those who could not afford a lawyer
had to somehow access one to qualify for legal assistance. Moreover, as the judge often asked
that same lawyer to undertake the case, this discouraged lawyers from providing certificates
even for valid claims to avoid representing the litigant without any remuneration. In forma
pauperis was the primary source of legal aid until the early-20 th century but its reliance on the
discretion of judges and charity of lawyers meant that it had ‘not been of practical benefit to
the poor’.49

The next iteration of legal aid was the ‘Poor Person’s Procedure’,50 which operated from 1914
to 1949. Its main contribution was establishing a ‘Poor Person’s Department’ in the High
Court in London.51 The staff of this department were employed by the Lord Chancellor and
responsible for finding lawyers to certify claims and then distributing the case to another
lawyer from a list of volunteers who had enlisted their services. This meant that whilst the
Poor Person’s Procedure introduced some administrative support, legal aid was still not
widely available and depended on ‘charity, albeit a more organised form of charity’. 52 Access
to justice was therefore also not guaranteed to every citizen and undermined as a
constitutional right, as illustrated by volunteer lawyers registered under the procedure
refusing to provide their services in divorce cases because of conservative attitudes about
marriage at the time.53

The post-World War II government as part of its welfare agenda commissioned the
Rushcliffe Committee in 1945 to reform legal aid, and the committee proposed that access to

47
Maguire (n34) 376
48
Ibid 377
49
Sir Edward Abbott Parry, The Law and the Poor (Smith, Elder & Co. 1914) 184
50
Rules of the Supreme Court (Poor Persons) 1914
51
Morgan (n3) 42
52
Ibid 43
53
Ibid 48

8
justice necessitated ‘recourse to professional assistance’. 54 It made the following
recommendations:55 legal aid should be available as of right and provide access to legal
assistance in all legal disputes in the form necessary; it should be available to the poorest as
well as to people of ‘moderate’ means so that justice does not compel a compromise in living
standards; and legal aid should be state-funded but administered with oversight by the legal
profession to utilise its expertise. EJ Cohn noted the discourse at the time of this report
affirming that ‘a right to receive legal aid seems to have become a principle upon which,
happily, all are agreed’.56

C. The Modern Legal Aid Scheme

The Legal Aid and Advice Act 1949 which followed the Rushcliffe Committee was also
based on access to justice concerns as evident by the House of Commons debates in passing
the statute. One MP said it is ‘the maxim of our constitutional law, that every man is equal
before the law, but it has been notorious that going to the law is an expensive occupation…
the result often being a denial of human as well as of legal right’. 57 Another proclaimed that it
‘enshrines the principle that the citizen is entitled to legal aid as of right, and not as of charity.
It will go a long way to establishing that equality before the law’. 58 Moreover, whilst it was
acknowledged that individuals ‘must not be encouraged lightly to go to courts of law… it is
equally important that persons should not feel aggrieved that they have been deprived of
access to the courts’.59 The importance of legal assistance in giving effect to access to justice
in all legal disputes was therefore resolutely identified in the mid-20 th century and legal aid
was redefined from an ‘optional extra’ based on charity to ‘financial aid’ that could guarantee
state-funded legal assistance to every potential litigant who could not afford to pay
privately.60

The modern legal aid scheme as enacted by the 1949 Act nevertheless faced an initial
problem. As Kaganas observes,61 economic pressures combined with the substantial increase
in marriage breakdowns and divorce proceedings following World War II meant that legal
54
Report of the Committee on Legal Aid and Legal Advice in England and Wales (1945, CMD 6641) para. 125
55
Ibid, para.127
56
EJ Cohn, ‘Legal Aid to the Poor and the Rushcliffe Report’ (1946) 9 Modern Law Review 58, 66
57
HC Deb (n5) cols 1243-1244 (David Maxwell Fyfe)
58
Ibid, col 1249 (Eric Fisher)
59
Ibid, col 1285 (Emerys Roberts)
60
Pollock (n30) 5-6

9
aid in non-family law areas and various other features of the scheme were regretfully
suspended. Subsequent developments corrected these issues and by 1971 the legal aid scheme
operated in the following way.62 First, it allowed applicants as well as respondents access to
legal advice on any question of law by a private lawyer registered under the scheme. This
included advice on preparing an application for legal aid itself so there was support available
throughout the process. Secondly, the scheme provided for disputes that did not involve
litigation but still required other forms of legal assistance. This included matters such as
writing legal letters and investigating whether a dispute had legal grounds. Lastly, it provided
access to legal representation in court for all civil legal proceedings except defamation, and in
almost every court in the country.

To qualify for advice under the scheme, 63 the means test was a disposable capital of less than
£125 and weekly income of less than £9.50. For the poorest applicants receiving state
benefits the advice was free, and for those not receiving benefits it would cost 12.5 pence.
Additionally, any member of the public regardless of their means could have a free 30-minute
session with a solicitor for legal advice concerning a dispute, for which the solicitor was
reimbursed £1 from the state. To qualify for legal representation under the scheme, 64 the
requirement was a disposable capital of less than £500 and weekly income less than £18,
however legal aid was granted in any case if the litigation was expected to cost more than the
litigant could be expected to pay. For poorest applicants legal representation was free, and
those exceeding the above amounts had to contribute to the cost of the proceedings. This
expansive means test made over 80% of the population eligible for state-funded legal
assistance.65

However, scheme also protected itself from encouraging vexatious claims. For example, it
deducted litigation costs from any damages awarded in a case before paying the rest to the
litigant.66 It also mandated that legally aided actions only proceed if the acting lawyer would
advise a private client to do so under the same circumstances, and if the legal aid application
was certified by a ‘Local Committee’ if proceedings were in courts of first instance and an
61
Felicity Kaganas, ‘Justifying the LASPO Act: authenticity, suitability, responsibility and autonmy’ (2017) 39 Journal of
Social Welfare and Family Law 168, 173
62
E.J.T. Mathews, Legal Aid and Advice Under the Legal Aid Acts 1949 to 1964 (Butterworths 1971) 3
63
Ibid
64
Ibid 5
65
Morgan (n3) 67
66
Mathews (n62) 5

10
‘Area Committee’ if in appellate courts, both staffed by independent lawyers who considered
the financial situation of the litigant and the legal merits of the case before issuing a
certificate.67 The legal merit of the case was to be considered as if the committee members
were advising their own private clients and the test was that a litigant only qualified if there
were legal grounds for the action and it was reasonable for funding to be granted in the case.68

Moreover, these checks controlled the legal profession from exploiting the scheme. In
Holmes v National Benzole Co,69 Lyell J stated that there was a ‘heavy duty on counsel and
solicitors to test their client’s case with the same anxious care as they would bring to one
where they looked to their client for costs’. Advising the client to pursue proceedings even if
the legal case was ‘hopeless’ could make the lawyer personally liable for the litigation costs,
as it did in Holmes. Similarly in Iverson v Iverson,70 Latey J held that ‘[i]f at any stage of a
case an assisted person’s advisers are of the opinion that he has not, or no longer has, a
reasonable prospect of success… it is their duty to report to the area committee’, who must
then review the funding.

Seton Pollock observes the first 20 years of the legal aid scheme as ensuring that the principle
of ‘equality before the law… should cease to be a mere theory and become a practical
reality’.71 The most disadvantaged benefited the most as, for example, it directly contributed
to divorce applications for cruelty increasing from 2.1% in 1937 to 22.4% in 1954. 72 Indeed a
prominent family law academic, Stephen Cretney, credits the scheme as ‘the most
significant of all the various influences of the development of the family justice system
in this country’. 73 Legal aid remained available to almost 80% of the population in 1979 and
in this ‘golden period’ other areas such as social welfare law also began benefiting greatly. 74
In Airey v Ireland (1979), which is elaborated later, the ECHR held that in all civil
proceedings Article 6(1) right to a fair trial under the Convention may ‘compel the State to

67
Ibid 5-6
68
Ibid 6
69
[1965] 1 WLUK 260
70
[1966] 1 ALL E.R. 258, 262
71
Pollock (n30) 5
72
Ross McKibbin, Classes and Cultures (Oxford University Press 1998) 303
73
Cretney (n24) 275
74
Hynes and Robins (n35) 26-27

11
provide for the assistance of a lawyer when such assistance proves indispensable for effective
access to court’,75 a role the legal aid scheme fulfilled.

The modern legal scheme thus established that legal assistance would be widely available so
that all citizens could effectively access courts and enforce their legal rights. It provided
equality of arms to the socially disadvantaged and the indigent in their disputes against
wealthier citizens and transformed access to justice from depending on discretion and charity
to a constitutional right protected across society. This was the constitutional imperative,
purpose and, to a significant extent, the result of the legal aid scheme. The scheme has
been subjected to numerous retrenchments since its pinnacle in the 1980s as examined in
this section. As the second chapter argues, however, reforms implemented in 2012 are
undermining its ability to ensure access to justice to an unprecedented degree and risk making
justice dependant on discretionary and charitable avenues again.

75
No. 6289/73, para. 26

12
Chapter 2 – Access to Justice and the Legal Aid Scheme Post-LASPO

A. Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (hereafter ‘LASPO’)
is the ‘most radical revision of legal aid since the inception of the modern scheme’. 76
Pre-LASPO, civil legal aid was available in every area unless it was expressly excluded
under Schedule 2(1) of the Access to Justice Act 1999. LASPO reversed this approach in
2012 and disallowed legal aid from every area unless it is expressly included in Schedule
1, Part 1 of LASPO. Post-LASPO legal aid is unavailable for cases in private family law,
including divorce unless there is evidence of domestic abuse, all welfare law cases
unless in an appeal on a point of law, most debt, negligence, housing, employment and
immigration law cases, and many other civil disputes between citizens. 77 For areas that
remain, anyone with a capital of £8,000 and a disposable monthly income of over £733
cannot qualify, and those with a capital of over £3,000 and a disposable monthly income
of £315 must contribute up to 70% towards the legal costs. 78 Additionally the equity in

76
Stephen Cobb, ‘Legal aid reforms: its impact on family law’ (2013) 35 Journal of Welfare and Family Law 3
77
For a list of the areas excluded post-LASPO, see. Ministry of Justice, ‘Legal aid reform: Scope’ (Legal Services
Commission 2013) <[Link]
newslatest-updates/legal-aid-reform/scope/> accessed 10 July 2019
78
Legal Aid Agency, ‘Means Assessment Guidance’ (2019) 207
<[Link]
Means_Assessment_Guidance.pdf> accessed 11 July 2019

13
the applicant’s property above £100,000 forms part of the means test. 79 These figures
mean that just 25% of the population in 2015 remained eligible under the legal aid
scheme.80

LASPO directly caused legal aid in civil disputes to fall from 925,000 cases in 2012/13
to 497,000 in 2013/14, 81 a reduction of 46% in one year. By 2016/17 legal aid advice and
representation in civil disputes had fallen 74% and 29% respectively from pre-LASPO
figures.82 Civil legal aid expenditure was reduced from £1.13bn in 2010/11 to £650m in
2016/17.83 The reforms were justified by the government on the grounds that many legal
disputes between citizens are more suited to alternative dispute resolution (ADR) and
people should be dissuaded from ‘resorting to lawyers whenever they face a problem’. 84
It also stated that:

‘The modern legal aid scheme was established in 1949 with a laudable aim: to provide
equality of access and the right to representation before the law. However, the scope of
legal matters covered was very tightly drawn. (…) It has expanded, so much so that it is
now one of the most expensive in the world, available for a very wide range of issues…
(…) There is a compelling case for going back to first principles in reforming legal
aid.’85

These reasons are flawed. First, access to justice as a constitutional right requires all
laws to be enforceable by every citizen. ADR cannot be used to replace access to courts
and nullify substantive laws, especially as it cannot address disputes involving
‘significant complexity, a point of law or pivotal point of fact’. 86 Secondly, legal
assistance is critical to effectively access justice in adversarial courts so whilst the legal
aid scheme pre-LASPO was indeed expensive, a simple financial comparison with other

79
Ibid 74
80
Joint Committee on Human Rights (n8) 14
81
Legal Aid Agency, ‘Legal Aid Statistics in England and Wales 2013-2017’ (Ministry of Justice Statistics Bulletin 2014)
63 <[Link]
[Link]> accessed 11 July 2019
82
Ministry of Justice, Legal Aid, Sentencing and Punishment of Offenders Act 2012: Post-Legislative Memorandum (APS
Group 2017) 45
83
Ibid 51
84
Ministry of Justice (n7) 3
85
Ibid
86
David Norgrove, ‘Family Justice Review: Interim Report’ (Ministry of Justice 2011) 172

14
countries risks ‘missing important structural differences between justice systems’. 87 For
example, in 2009 legal aid cost £57.87 per capita in England and Wales compared to
other developed countries such as Sweden which spent £10.57 per capita on legal aid,
but Sweden’s inquisitorial court system meant that it necessarily spent £51.32 per capita
on its courts compared to just £8.09 per capita spent on English courts. 88 Lastly, whilst
the initial scheme indeed did not cover all legal areas as examined above, this was due to
economic pressures and promptly corrected. The ‘first principles’ of the scheme were
expansionary and concerned with ensuring access to justice across society. The present
legal aid scheme is failing these objectives and reflects a ‘skewed interpretation of
history’.89 The next section argues that it is making access to justice a hollow right for many
litigants.

B. Justice Denied: Indigent Litigants, Advice Deserts and Self-Representation

LASPO has resulted in a ‘two-tier justice system: open to those who can afford it, but
increasingly closed to the poorest, most vulnerable and most in need of its protection’. 90 This
has manifested itself in at least three ways. First, a report commissioned by the Law Society
showed that the post-LASPO means test is demanding contributions even from the
minority of individuals who remain eligible under the scheme but ‘whose income would
only be just enough to pay for food, heating, travel and housing costs, even before
meeting other expenses such as clothing, household goods and personal care items’. 91
The present legal aid scheme is therefore becoming practically inaccessible to even the
poorest citizens.

Secondly, whilst legal aid lawyers have always been more prevalent ‘in some geographical
areas and in some fields of law’,92 LASPO’s extensive changes have made specialisation in
legal aid work unprofitable and risks ‘the future sustainability of legal aid practice’. 93 This is
87
Roger Bowles and Amanda Perry, International comparison of publicly funded legal services and justice systems (Ministry
of Justice Research Series 14/09 2009) 36
88
Ibid 27
89
Kaganas (n61) 1
90
Amnesty International, Cuts that hurt: The impact of legal aid cuts in England and Wales on access to justice (Amnesty
International UK 2016) 3
91
Donald Hirsch, Priced out of Justice? Means testing legal aid and making ends meet (Loughborough University 2018) 3
92
Constitutional Affairs Committee, Civil legal aid: adequacy of provision (The Stationary Office Limited 2004) 20
93
House of Commons Justice Committee, Impact of Changes to Civil Legal Aid Under Part 1 of the Legal Aid, Sentencing
and Punishment of Offenders Act 2012 (The Stationary Office Limited 2015) 31

15
compounded by fees for legal aid work remaining stagnant since 1998, a 34% reduction in
real terms.94 Legal aid firms have thus decreased by 20% from 2012 to 2017. 95 A report
assessing the immigration and asylum market found that out of 54 regions in England and
Wales, 20 did not contain a single legal aid provider and a further 5 had just one. 96 Similarly,
a survey of 348 local authorities showed that 184 contained no legal aid solicitor for housing
cases and 81 had just one, making access to legal assistance under the present scheme
potentially physically inaccessible to the 35 million people residing in such ‘advice deserts’. 97

The third and most pernicious denial of justice has been that individuals who can no longer
utilise the present scheme, either because of the restrictive means test, an inability to locate a
legal aid provider or because their dispute is in an area no longer covered, but also cannot
afford to pay privately, must now forego a legal remedy or represent themselves in court
without legal assistance. The latter are known as litigants-in-person (LIPs). The UK Supreme
Court in Barton v Wright Hassall LLP (2018) held that whilst ‘litigating in person is not
always a matter of choice with the unavailability of legal aid’, LIPs should not be given
different treatment or assistance from a judge, or any substantial leniency during proceedings,
because that ‘imposes a corresponding disadvantage on the other side’.98

In Barton the LIP’s claim for professional negligence against a law firm was successfully
refuted by a lawyer because of a technical mistake regarding the claim form, the judge
holding that the LIP was ‘not entitled to any greater indulgence… than represented parties’. 99
Similarly in Reynard v Fox (2018) the LIP’s claim for negligence and breach of contract
against his bankruptcy executors was successfully refuted by a lawyer on the basis that he
used the wrong section of the Insolvency Act 1986 to bring the claim. 100 This means that legal
aid has been retracted from potentially complex areas of law but the alternative to enforcing

94
Amyas Morse, ‘Implementing reforms to civil legal aid’ (National Audit Office 2014) 33 <[Link]
content/uploads/2014/11/[Link]> accessed 15 July 2019
95
Kayliegh Leanne Richardson and Ana Kate Speed citing Sam Gyimah (2017) in ‘Restrictions on legal aid in family law
cases in England and Wales: creating a necessary barrier to public funding or simply increasing the burden on family
courts?’ (2019) 41 Journal of Social Welfare and Family Law 135
96
Jo Wilding, ‘Droughts and Deserts: A Report on the immigration legal aid market’ (2019) 9
<[Link] accessed on 15 July 2019
97
The Law Society, ‘Parliamentary Briefing, Housing legal aid deserts’ (2019) <[Link]
campaigns/public-affairs/parliamentary-briefing/legal-aid-deserts/> accessed on 15 July 2019
98
1 WLR 1119, 1129 (Lord Sumption)
99
Ibid 1120
100
EWHC 443 (Ch) para. 45 (HHJ Paul Mathews)

16
legal rights, self-representation, has not been correspondingly adjusted, with LIPs facing
experienced lawyers and struggling without legal assistance themselves. This is not only
making it difficult for citizens to enforce their legal rights but potentially affecting their
participation in a fair trial, a right protected by Article 6(1) of the Convention and the
Human Rights Act 1998.

In civil proceedings, whether state-funded legal assistance is necessary for a fair trial
‘will depend, inter alia, upon the importance of what is at stake for the applicant in the
proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to
represent him or herself effectively’.101 The Airey case mentioned earlier concerned a
domestic abuse victim seeking legal separation who could not afford to pay a lawyer and her
emotional difficulties, the possibility of the abuser being represented by a lawyer and the
complexity of proceedings in the Irish legal system meant that self-representation would be
inappropriate, with the ECHR holding that this frustrated effective access to court for a
remedy and breached her right to a fair trial. 102 A fair trial is perhaps compromised most in
private family law cases post-LASPO, as such disputes often involve vulnerable litigants in
precarious situations but which was nevertheless excluded from the scheme because the
government proposed that ‘legal aid in this area is creating unnecessary litigation and
encouraging long, drawn-out and acrimonious cases’.103 This is despite research indicating
that family law litigants are less likely to self-represent than individuals in other civil disputes
due to the greater complexity and nature of family proceedings. 104 Richardson and Speed
further observe that the benefits of legal assistance in family cases ‘cannot be overstated’
because most litigants do not possess the skill and experience necessary to identify and argue
their strongest arguments against a lawyer.105

In Q v Q (2014),106 for example, an estranged father did not qualify for legal aid under the
present scheme and as a LIP made an application under Section 8(1) of the Children Act 1989
to re-establish contact with his son. This presented significant problems because the father
did not speak English, could not prepare the documents necessary for the application and,
101
Steel and Morris v United Kingdom [2005) 41 EHRR 403, para.61
102
[1979] No. 6289/73, para. 26
103
Ministry of Justice (n7) 70
104
Graham Cookson, ‘Unintended Consequences: The Cost of the Government’s Legal Aid Reports: A Report for the Law
Society of England & Wales’ (King’s College London 2011) 63
105
Richardson and Speed (n95) 139
106
EWFC 7

17
crucially, was unable to effectively cross-examine or challenge an expert witness’s report
brought by the mother which rendered him a danger to the child because he had been
convicted of sexually assaulting young children. As the judge remarked, however,
‘[t]empting though it is to think that the father’s case is totally lacking in merit… I am
unpersuaded that there are not matters in these reports which could properly be challenged,
probed, by someone representing the father’.107 The judge elaborated that the father would not
be able to ask questions to the expert that a lawyer would and which may be critical to the
case, such as ‘your analysis of the risks that the father poses to his son, as opposed to other
children, is based upon the account you have had from the mother of what went on in the
family home’ and ‘[suppose] for the sake of argument that the true picture at home was not
what the mother says but a very different picture presented by the father. Just suppose that.
Would that affect your opinion?’108

Similarly in Father v Mother (2017) a LIP applying under Section 1(3a) of the Children Act
1989 to gain custody of a child was unsuccessful, with the judge describing his behaviour
during the proceedings as ‘self-centred’, showing ‘little respect… for anybody who disagrees
with him’ and ‘insulting the other witnesses’.109 However, this behaviour can also be
explained by factors such as frustration with the proceedings or a lack of ability and legal
experience, potentially allowing a party represented by a lawyer to take advantage and
influence the judge’s outcome regardless of how strong the legal case may have been with
legal assistance.110 These examples are indicative of the wider situation as 78% of private
family proceedings now involve one or both parties litigating-in-person, an increase of 50%
from 2011 to 2016.111 Indeed they are occurring across the civil justice system as Lord
Neuberger’s extra-judicial comments indicate: ‘the substantial increase in litigants in person
represents a serious problem… [whose effects] can only be imagined’.112

It should be noted that Section 10(2) of LASPO does permit funding in ‘exceptional
cases’ for any area of law if, per Section 10(3), not doing so would risk breaching an

107
Ibid, para.9
108
Ibid, para.10
109
EWFC 48, para.5
110
Richardson and Speed (n95) 140
111
Sarah Moore and Alex Newbury citing various Ministry of Justice sources in Legal Aid in Crisis: Assessing the Impact of
Reforms (Policy Press 2017) 6
112
Lord Neuberger, Welcome address to Australian Bar Association Biennial Conference (UK Supreme Court 2017) para. 11
< [Link] accessed 24 July 2019

18
individual’s rights under EU law or the Human Rights Act 1998. However, this has only
resulted in 1,200 applications per year, much fewer than anticipated, because it takes a
lawyer 10 hours on average to apply for exceptional case funding without remuneration
or knowing whether the application will be approved. 113 Combined with the other effects
of LASPO examined above, this means that even if funding is potentially available
lawyers have no incentive to undertake a legal aid case or prioritise it over work for a
private client.

The present legal aid scheme is therefore making it difficult for many litigants to
effectively enforce their legal rights and participate in a fair trial. LASPO has made the
means test so restrictive that even the poorest fail to meet it, it has created ‘deserts’
where legal aid is practically irrelevant, and it has led to a flood of LIPs who are
struggling without legal assistance. As the next section argues, this means that justice
may now depend on discretionary and charitable avenues again.

C. Post-LASPO: A Return to Discretion and Charity

The professional legal assistance previously assured by the legal aid scheme has now partly
been replaced by discretionary and charitable modes of assistance reminiscent of historical
systems of legal aid. First, whilst this topic remains relatively under-researched in England
and Wales, one of the largest recent studies in the context of Northern Ireland discovered that
judges regularly assist unrepresented litigants by taking actions such as explaining the
procedure and the legal issues of the case to LIPs, adjusting their language and generally
deploying ‘approaches that are more inquisitorial in terms of questioning parties’, but
whether and the cases in which this happens depends heavily ‘upon judicial discretion’ and
judges ‘are not united in their views as to how far they should assist LIPs’. 114 Moreover,
judges using an inquisitorial approach in an adversarial setting and without the relevant
training means that even this assistance varies as some judges are more competent than others
in providing effective guidance.115

There is reason to believe that the scarcity of legal aid post-LASPO and the consequent rise
in the number of LIPs is contributing to this also occurring in England and Wales. For
113
Richardson and Speed (n95) 141
114
Grainne McKeever and others, Litigants in Person in Northern Ireland: Barriers to Legal Participation (Ulster University
2018) 131
115
Ibid

19
example, in the Q v Q case discussed above, the judge adjourned the hearing because he
deemed legal advice and representation necessary ‘to ensure proceedings which are just and
fair’ and asked legal aid to be provided either by the Ministry of Justice, another government
department or, failing both, at the expense of his own court.116 In the other cases cited above,
however, there was no such assistance and the respective judges did not even consider taking
a similar approach. In Reynard v Fox the judge resolutely stated that there was ‘no injustice
arising merely from the fact that the claimant is a litigant in person’, 117 even if legal assistance
may arguably be the only difference between the litigant successfully enforcing his legal
rights. In other words, there is an increased risk of justice depending merely on the arbitrary
discretion of the acting judge and his or her willingness and ability to assist a litigant, as it did
under the in forma pauperis system of legal aid that existed from 1495 to 1914 and which
failed in many ways as examined in the first chapter.

The second avenue is the increased reliance on pro bono services. In 2017, LawWorks, an
alliance of non-profit legal charities in England and Wales, assessed the pro bono sector in
the post-LASPO legal landscape and reported that 82% of their 225 affiliated partners
experienced an increase in demand for legal advice from the previous year. 118 Similarly
Drummond and McKeever’s study of university law clinics, in which law students provide
free legal advice to the local community under supervision, discovered that 84% experienced
an increase in demand from 2012 to 2015, 119 driven by legal aid reforms. Pro bono is
extremely beneficial to the litigant without legal aid, as it is better than no legal assistance
whatsoever, and also to the volunteers and the community they reside in as it can improve the
participant’s morale and challenge pre-held political ideologies. 120 University law clinics are
also valuable, not only because they assist in the legal education of students but also expose
them ‘to the harsh realities of life and to appreciate the struggles experienced by others when
trying to access the law’.121

116
Q v Q (n106) para.20
117
Reynard (n100) para. 45
118
LawWorks, ‘LawWorks Clinics Network Report April 2016 – March 2017’ (2017) 3-5
<[Link] accessed 22 July 2019
119
Orla Drummond and Grainne McKeever, Access to Justice through University Law Clinics (Ulster University 2015) 5
120
Vinny Kennedy, ‘Pro Bono Legal Work: The disconnect between saying you’ll do it and doing it’ 1467-1069
International Journal of Clinical Legal Education (2019) 1, 10-11
121
Ibid 16

20
However, relying on pro bono for legal assistance risks passing on to charity ‘the state’s
access to justice obligations’.122 This is unsustainable because commercial realities limit legal
professionals’ capacity to conduct such work for free. Lisa Webley’s research showed that
most lawyers thought ‘the regular time commitment needed to participate in pro bono
schemes posed difficulties and lack of time was also cited as a problem by those who carried
out pro bono work’,123 and this study was conducted in 2001 before the extra demand
generated by LASPO. This is also true for university law clinics as whilst 84% experienced
increased demand, only 64% were actually able to increase their caseload because of a lack of
resources.124 More significantly, it means access to justice depending on the charity of
lawyers again, even if such charity is provided in an organised form. This mirrors the Poor
Person’s Rules procedure that existed from 1914 to 1949.

If the effective enforcement of legal rights and the applicability of substantive laws is
determined by a citizen’s ability to pay for legal assistance, the rule of law becomes ‘an
anaemic attenuated make-believe which we flash in the eyes of the poor as justice’. 125 Legal
assistance must therefore be provided to all members of society who cannot afford to pay
privately to ensure that access to justice is realised as a constitutional right. This was
precisely the lacuna that the modern legal aid scheme was introduced to fill in 1949 – its
constitutional imperative – that the present legal aid scheme is undermining. The third
chapter explores three different reforms that can reinforce access to justice in England and
Wales.

122
Fiona Mcleay, ‘The legal profession’s beautiful myth: surveying the justifications for the lawyer’s obligation to perform
pro bono work’ 15 International Journal of the Legal Profession 249, 251
123
Lisa Webley, ‘Pro Bono and the Young Profession: View from England and Wales’ (2001) 19 Law Context: A Socio-
Legal Journal 45, 46
124
Drummond and McKeever (n119) 5
125
F.C.G. Gurney-Champion, Justice and the Poor in England (Routledge Publishing 1926) 21

21
Chapter 3 – Possible Reforms

A. Reinvent the Legal Aid Scheme?

A straightforward solution to the problems identified above is to reverse the reforms.

However, whilst this dissertation has focused on the latest reforms to illustrate how
particularly ‘in its latter period… the scheme [has become] an irrelevance to most people’, 126
the legal aid scheme has been slowly retrenched by numerous developments since its
pinnacle in the 1980s and civil legal aid in particular has faced ‘death by a thousand cuts’. 127
Hynes and Robins therefore suggest at least three steps to fundamentally reinvent the
provision.

First, access to justice and the ability to effectively enforce legal rights is a constitutional
right of every citizen and it must be accepted that legal aid is ‘meant to ensure this’. 128 The
means test must therefore be broadened so that not just the poorest but also people of ‘small
and moderate means’ are eligible and the scheme must cover all legal areas in which lawyers

126
Hynes and Robins (n35) 131
127
Ibid 132
128
Ibid 134

22
represent private clients.129 Secondly, as legal aid funding will inevitably depend on economic
resources, any compromise to the first condition must be driven by robust research and ‘an
understanding of who should be under the scheme and to what assistance they should be
entitled’.130 An individual who may face significant problems representing herself in any
legal dispute, and legal areas or cases which are particularly complex, such as family law,
must be identified and expressly included in the scheme and legal assistance provided
conveniently. Lastly, the scheme must reverse the decline of legal aid lawyers by paying
adequate fees for legal aid work,131 with sufficient oversight to avoid abuse as in the original
provision.

These reforms would make most citizens eligible for legal assistance again, eliminate ‘advice
deserts’ and reduce the need for self-representation. The legal aid scheme would regain its
effectiveness and fulfil its purpose of protecting access to justice as a right to a significant
degree. As the next section proposes, however, there is perhaps a better alternative to
guarantee equal access to justice than the concept of financial legal aid paid to private
lawyers.

B. Establish a National Legal Service?

Tom Cornford makes an important point by juxtaposing access to healthcare and access to
justice in England and Wales. Whilst the former is a social right that competes with other
social securities and the latter a constitutional right necessary to uphold the rule of law, in
reality access to doctors is guaranteed to a much greater extent by the National Health
Service (NHS) than access to lawyers has ever been. 132 There should therefore be a legal
equivalent of the NHS, the National Legal Service (NLS). However, Cornford goes further
and says ‘true’ access to justice requires all litigants having equal quality of legal assistance
and ‘people’s ability to defend their legal rights [must not be] allowed to differ in accordance
with their income’.133

In other words, similar to the NHS which seeks to provide equal standard of care to every
patient but dissimilar to it in the sense that patients can pay for better healthcare privately,

129
Ibid
130
Ibid 135
131
Ibid 135-136
132
Cornford (n10) 36
133
Ibid 33

23
equal access to justice in adversarial proceedings where elite lawyers significantly advantage
a litigant is only attainable if it is ‘impossible to obtain legal services outside the scheme of
state assistance’.134 The NLS would thus require socialising ‘the whole business of giving
legal advice and assistance’.135 All lawyers would be exclusively employed by NLS and
provide free legal assistance to all. To prevent the richest from circumventing the NLS by
employing ‘people with legal training at a high salary… even if those persons were no longer
entitled to describe themselves as lawyers’, 136 representation in courts would be restricted to
NLS staff.

Cornford acknowledges that this would be a ‘monstrous attack’ on liberty and autonomy. 137
Adapting this idea, however, an NLS with state-salaried lawyers without abolishing the
private legal profession still presents several potential advantages over a legal aid scheme. It
would make state-funded legal assistance more equal in quality and available to all citizens;
reforms such as LASPO may be as vehemently opposed by the public as they are against the
NHS if all citizens are affected by them instead of just the poorest; and the costs of funding
such a service may compel bring to light the problems with our legal system and compel its
simplification.

C. Transplant an Inquisitorial Court System?

An inherent disadvantage with the first two suggestions is that the effective enforcement of
legal rights would still depend on access to legal assistance. It is therefore worth exploring
whether this dependence can be reduced by implementing an inquisitorial court system in
England and Wales. The present adversarial tradition reflects the origins of the common law
when the expectation was for ‘men to help themselves when they have been wronged, and
that by slow degrees a litigatory procedure substitutes for the rude justice of revenge’. 138
Remnants of this individualism have persisted and it is arguably ‘a major defect of the
adversary system’ that justice still depends on the ability of litigants or their lawyers instead

134
Ibid 36
135
Ibid
136
Ibid 37
137
Ibid 38
138
Frederick Pollock and Frederic Maitland, History of English Law before the Time of Edward I: Vol. 2 (Cambridge
University Press 1968) 572

24
of judges conducting a comprehensive investigation and ascertaining the actual truth of a
dispute.139

In the inquisitorial court system of France, by contrast and for example, a judge specifically
trained to be ‘master of the applicable law’ in a legal area undertakes numerous fact-finding
measures (mesures d’instruction) prior to the final hearing in a civil dispute, such as calling
witnesses, collecting expert reports and evidence from the parties, and makes the decision
based on this investigation.140 Whilst argumentation is permitted in the final hearing, there is
an impetus on courts to ‘control the progress and preparation of cases’. 141 Similarly in
Germany’s inquisitorial system ‘the court rather than the parties’ lawyers takes the main
responsibility for gathering and sifting evidence, although the lawyers exercise a watchful
eye over the court’s work’.142 These characteristics render legal assistance advantageous for
litigants so there is robust evidence in their favour and beneficial for the judge but prevent it
from determining whether litigants can effectively access legal justice as in adversarial
courts.

According to Alan Watson’s ‘legal transplant’ theory,143 this issue can be resolved by
borrowing and adapting an inquisitorial system. One problem with this suggestion is whether
transplanting legal rules and institutions from one context to another is even possible because
the epistemological and interpretative differences between legal cultures which gradually
develop over centuries mean that ‘a crucial element of the ruleness of the rule – its meaning –
does not survive the journey’.144 Disregarding these differences can lead to a meaningless
transplant either failing to solve the intended problem or causing ‘chaos’ by concealing the
need for a culturally-appropriate solution.145 Even if legal transplants are possible, another
problem is whether a one-size-fits-all approach is desirable because legal rules reflect the
needs of a society and it is ‘a very great accident should those of one Nation suit another’.146
139
J.A. Jolowicz, ‘Adversarial and Inquisitorial Models of Civil Procedure’ (2003) 52 The International and Comparative
Law Quarterly 281, [283]-[292]
140
Ibid 290
141
Ibid 291
142
John Langbein, ‘The German Advantage in Civil Procedure’ (1985) 52 University of Chicago Law Review 823, 826
143
Alan Watson, Legal Transplants: An Approach to Comparative Law (Scottish Academic Press 1974) 7
144
Pierre Legrand, ‘The Impossibility of Legal Transplants’ 4 Maastricht Journal of European Comparative Law (1997) 111,
119
145
Tahirih Lee, ‘Risky Business: Courts Culture, and the Market Place’ (1993) 47 University of Miami Law Review 1335,
1338
146
Charles Montesquieu, De L’Espirit Des Drois (Mayer & Kerr 1792) 74

25
For example, Italy attempted a similar reform in 1988 but, conversely, replaced its
inquisitorial system in criminal proceedings which was criticised as being corrupt, grossly
inefficient and lacking judicial independence, with an adversarial system whose restrictions
on ‘the judge’s ability to intervene’ in a case were seen as a positive. 147 The transplant failed
partly because the ‘cultural sensitivities of the judiciary’ meant that Italian judges were still
intervening regularly and inappropriately in proceedings. 148 A successful example of a legal
transplant, on the other hand, is ADR which has been correctly transplanted in many
countries from its origins in American scholarship.149

Legal transplants may therefore be possible, certainly as globalisation and the internet
increasingly narrow epistemological gaps between cultures, but appraising comparative
concepts without extensive research into the wider home and host cultures can lead to a
‘malicious legal transplant’ whose faults are not immediately apparent to outsiders. 150
Whether and how an inquisitorial court system can be transplanted and ultimately replace the
need for legal assistance in civil disputes and consequently a legal aid scheme in England and
Wales thus warrants further research. This dissertation contributes to that task having
identified the context-specific purpose of the modern legal aid scheme and the effects of ill-
fitting reforms.

Conclusion

In conclusion, this dissertation began by proposing that access to justice is a constitutional

right because laws that govern a society must be enforceable by every member of that
society. The rule of law cannot be said to exist otherwise. If the effective enforcement of
legal rights, whether against the state or between citizens, depends on legal assistance as it
does in the adversarial court system of England and Wales then access to justice necessitates
that this assistance is also provided to indigent litigants. Historical conceptions legal aid
based on the discretion of judges and the charity of lawyers failed to guarantee this
assistance. The modern legal aid scheme as established in the mid-20 th century did guarantee
it to a significant extent by making most citizens eligible for state-funded legal assistance in

147
James Thomas Ogg, ‘Adversary and Adversity: Converging adversarial and Inquisitorial systems of justice – a case study
of the Italian criminal trial reforms’ (2013) 31 International Journal of Comparative and Applied Criminal Justice 31
148
Ibid 41
149
Inga Markovits, ‘Exporting Law Reform – But Will It Travel’ (2004) 37 Cornell International Law Journal 95, 99
150
Mathias Siems, ‘Malicious legal transplants’ (2018) 38 Legal Studies 103

26
almost all legal areas. This was the purpose and the constitutional imperative of the legal aid
scheme.

It was then argued this purpose and the ability of the legal aid scheme to protect access to
justice as a constitutional right has been severely affected by civil legal aid reforms
implemented under LASPO in 2012. Most citizens no longer qualify for legal aid and the
majority of civil legal areas previously under its scope have been removed. Those who
qualify in an area still covered nevertheless still struggle to meet the contributions required
under the excessively restrictive means test whilst the reforms have also instigated ‘advice
deserts’ across the country where legal assistance is physically inaccessible under the
scheme. There has consequently been a significant rise in litigants-in-person, who are failing
to effectively enforce their legal rights and for whom justice may again depend on discretion
of judges and the charity of lawyers. The reforms are therefore undermining the constitutional
imperative of the legal aid scheme.

Lastly, three different reforms were analysed going forward. It was suggested that these
problems could be resolved by reinventing the legal aid scheme with a more expansive means
test, including all legal areas in its scope and making legal aid work attractive again to
lawyers. An alternative to the legal aid scheme, the National Legal Service, was identified as
another possible solution. To resolve the dependence on legal assistance itself, it was
explored whether an inquisitorial court system could replace the need for a legal aid scheme.

---

Word count: 9958

27