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  • Author or Editor: Sarah Moore x
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Governments around the world are building online infrastructures which they hope will become the main channels through which they interact with citizens. This new, globally dominant orthodoxy in policymaking is closely tied to design-thinking which claims that digital technology addresses the dual crises of state capacity and public trust. Through an examination of virtual courts, this paper offers a critical analysis of the organising principles and the effects of the digital government revolution. It shows that virtual courts reconfigure the role of the public in ‘seeing justice being done’, leading to the emergence of a new ‘visuality of technocracy’. However, it questions the claim that digital technology will transform public services and increase public trust. Creating new virtual spaces and interfaces is not a costless endeavour and, while it may make public services more convenient, it recasts citizens as passive viewers of justice and individual users of public services.

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In the United Kingdom in 2016, the government embarked on an ambitious programme of court reform, at the heart of which is the dismantling of the physical court estate and its replacement with a new digital infrastructure to facilitate online management of cases and virtual hearings. COVID-19 accelerated this shift. Roughly half of court buildings in England and Wales were closed during the height of the pandemic, with face-to-face hearings reserved for priority cases and remote hearings held wherever possible. All this begs some critical questions. How have emergency court measures dealt with the demands of visibility and timeliness? What lessons might we draw concerning the opportunities and challenges of remote hearings? And what might post-pandemic justice look like in the criminal courts? This chapter seeks to answer these questions, and in doing so it identifies two distinctive forms of emerging justice that are taking the place of the open court: ‘portal justice’ and ‘broadcast justice’.

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Assessing the impact of reform
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Originally introduced as a form of social welfare with near-universal eligibility, legal aid in the UK is now framed as a benefit external to the legal system and understood in primarily economic terms. This book is the first to evaluate the recent reforms of UK legal aid from a social policy perspective and assess their impact on family law courts and advocacy.

Written by experts in the field, it focuses on the rise in people representing their own legal case and argues that the reforms effectively ‘delawyerise’ disputes, producing a more inquisitorial justice system and impacting the litigants, court system, staff and process.

Arguing for a more holistic concept of the reforms, the book will be of relevance to students, academics, policy-makers, judges, campaigners and social workers, not just in England and Wales, but in other jurisdictions instituting cuts to their legal aid budgets, such as Australia, Scotland, France, and the Netherlands.

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Introduced in England and Wales as part of the mid-20th-century move towards welfarism, legal aid is currently undergoing the most radical set of reforms in its 65-year history. This is part of a global shift. Many economically developed countries have embarked on sweeping reforms to legal aid, and this book considers the cuts in England and Wales in this context. Given the scale and nature of the shift in legal aid provision, the issue has received surprisingly little media attention. As we write this introductory chapter, most national newspapers are running a story about the publication of a United Nation’s report on the effect of United Kingdom (UK) austerity politics on human rights (Committee on Economic, Social and Cultural Rights, 2016). Though the report is excoriating about legal aid reform, identifying it as a particular source of concern, none of the news items even mention it. This is no accidental omission. Legal aid is routinely left out of news coverage of the social costs of austerity. We consider the relative lack of public debate about legal aid reform later. For now, and by way of introduction, we want to sketch out why we think legal aid reform matters and, more than that, why it should be seen as among the most important and impactful changes wrought by austerity politics.

There are various problems we could latch on by way of introduction. Take the fact that the reforms have removed publicly funded legal support for most people seeking to challenge the state’s decision on their social welfare arrangements.

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Legal aid, broadly-conceived, has a long history. As Pollock notes, help to cover the costs of legal dispute ‘has existed as long as the law itself’ (Pollock, 1975: 9). He’s thinking, in the main, about the charitable and often ad hoc support provided by lawyers. Statutory protections date back to an Act passed in 1495 that allowed Justices in the superior courts to order legal advocates to advise and represent litigants who lacked the means to pay (Pollock, 1975: 10). Special provision was made in criminal courts, where a system of ‘dock briefs’ operated, meaning that any robed barrister could be called upon in court to offer cheap representation to an unassisted person (Roshier and Teff, 2013). The late 19th and early 20th century also saw the growth of voluntary services providing legal aid, most notably ‘poor man’s lawyers’, who offered free legal support to people living in impoverished areas of London (Leat, 1975).

In short, subsidised, charitable and free support for legal dispute resolution has existed for centuries. Until the mid-20th century, though, it was largely inadequate, depending upon judges to intervene and direct assistance, and lawyers to shoulder the cost of advocacy. Provision was of inconsistent quality, directed at the very poor, and subject to regional variation. The creation of a modern legal aid system in the post-Second World War period was directed at changing all this. This chapter examines the emergence of publicly funded legal aid in England and Wales, considers its historical development and then places it in international context.

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In 2014, the National Audit Office rather damningly observed that the Ministry of Justice had implemented the far-reaching reforms introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) ‘without a good understanding of why people go to court to resolve their disputes’ (National Audit Office, 2014: 7, key finding 11). It highlighted a wide range of potential consequences that could stem from the cuts as unrepresented parties are left unsupported with potentially unresolved cases. It flagged the potential increased costs for the wider public sector, which may be left to pick up the pieces if an unrepresented litigant suffers mental or physical health issues due to the lack of legally funded advice and support (National Audit Office, 2014: 6, key finding 6). This chapter will consider these wide-ranging consequences, and how far alternatives such as mediation and McKenzie friends are able to plug the gap.

Thus, these far-reaching reforms have been carried out extremely quickly and apparently with little understanding of the potential impact they will have. Many organisations, including the Ministry of Justice and Legal Aid Agency (2014), the Public Accounts Committee (2015), the Low Commission (2014; 2015), and the Legal Action Group (2010) have rushed to understand the impact. Academics (Pleasence et al, 2012; Trinder et al, 2014) and lawyers (Knight, 2014; Magistrates Association, 2015; 2016) have reported on the impact for the court, litigant and lawyer. This chapter reviews that evidence. However, as we discuss, the focus in this body of literature tends to be on measurable and tangible effects.

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The previous chapter examined the evidence on the impact of the recent reforms to legal aid. We argued there that policy debate and research has focused almost entirely on the decline of publicly funded legal representation and its impact on courtroom proceedings. The cuts to civil legal advice and assistance have received very little attention, with the notable exception of the Low Commission’s (2014; 2015) recent reports on social welfare law. This gap is particularly surprising given that, on closer inspection, it is pre-litigation support that has been most affected by the cuts. The most recent statistics released by the Ministry of Justice and Legal Aid Agency (2016a) reveal that funding for civil legal help is at two thirds of its pre- Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) level, while funding for civil legal representation has declined by a more modest third. Thus, in this chapter we argue that a more holistic conception of legal aid is needed, one that takes account of the role of legal help and the experiences of litigants. This, in turn, will allow us to arrive at a better understanding of the impact of recent reform.

To this end, the first half of this chapter examines the role of the solicitor in giving advice and assistance, with a particular emphasis on the family lawyer, although many of these issues may in fact equally apply to legal aid lawyers more broadly. We compare the solicitor’s role with that of the mediator – not, to be clear, to suggest that this form of support is inherently better or worse, but rather to give a clearer sense of what has been lost with the cuts to legal help.

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We started this book by suggesting that recent reforms represent a wholesale shift in the operation and meaning of legal aid in England and Wales. Once seen as a form of social welfare, since the mid-1980s legal aid has come to be framed as a benefit operating extrinsically to the legal system and understood in primarily economic terms. The most striking evidence of this is the focus in policy debates on the cost of legal aid to the taxpayer. This framing has become so dominant as to normalise the idea that England and Wales has an unacceptably expensive scheme. This is anathema to the original conception of legal aid as a provision available to nearly all, according to their need. The more important observation is that debates about the principles and purpose of legal aid have been squeezed out by the almost exclusive focus on spending. By way of conclusion, we suggest that the debate about legal aid should be refocused on four key issues: the social value and function of legal aid, the impact of the cuts on people seeking advice or access to justice, a broader conception of spending, and the diffuse effects of the cuts on justice and the legal system.

Chapter Two pointed out that the recent reforms have been based on a shift in thinking whereby legal aid has come to be framed as a purely personal benefit, based on an autonomous decision to go to court. Recast in this way, the case for reducing coverage and eligibility is easy to make: why should taxpayers fund individuals to pursue their own personal interests in court? This represents the most significant shift in thinking about legal aid in its tumultuous 65-year history, and has provided the intellectual basis for its most comprehensive recomposition.

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