Imagine if, overnight, 17.5% of funding dedicated to legal aid disappeared, leaving considerable areas of law—such as welfare benefits, housing, immigration, private family and employment—with significantly diminished coverage. On April 1, 2013, the UK found itself in that very position when the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, cutting £350 million ($491 million) from the £2 billion ($2.8 billion) legal aid budget. As a result, within a month of the legislation coming into force, the number of new civil legal aid matters plummeted 70%.
Disproportionate impact on women
The impact of the LASPO legal aid cuts has been felt more keenly by certain segments of the population, many of which were already marginalized and underserved, including women. In their report to the UK in 2013, the UN Committee on the Eradication of Discrimination Against Women (“CEDAW”) expressed concern that the cuts “unduly restrict women’s access to legal aid” because they eliminate the areas of law upon which women rely.
In response, the UK’s Equality & Human Rights Commission (“EHRC”) published a report on what was being done to address CEDAW’s concerns. The report highlighted alarming findings, but also reported that steps were being taken to tackle some of the concerns. Because divorce proceedings are only covered by legal aid where there has been domestic violence, the EHRC found that women were being forced to prove that there had been abuse in order to unlock funding for legal advice and representation. For some this involved securing letters from doctors, many of whom charged women a fee to obtain evidence. Even if the evidence was obtained, it expired after two years, at which point women would have to start their evidence gathering all over again. And if legal aid was not available, women were put in the position of having to confront their abusers alone in court.
In 2016, the non-profit Rights of Women successfully challenged regulations that stipulated the type of evidence women must produce to prove abuse. In particular, they contended that with financial abuse—namely, controlling and coercive behavior that limits a person’s ability to control finances, making him or her more reliant on the abuser—the regulations were too narrowly drafted to be effective.
Subsequent regulations have attempted to address these issues. One amends the shelf life of the evidence so that fresh evidence of abuse is no longer required when a solicitor is applying to extend the legal aid funding. Another eliminates the requirement to prove that abuse has occurred within the previous five years. Moreover, new types of evidence of abuse are permitted, including input from specialist domestic violence charities and refuges. These are helpful, and hopeful, changes.
That being said, the burdens are still significant. Among the concerns identified in their report, the EHRC highlighted the exclusion of employment law, and discriminations cases brought under this umbrella, from civil legal aid. The EHRC’s research indicated that over 10% of mothers surveyed had left their job either because they had been dismissed, made redundant or felt forced to leave. These women, now unemployed and looking after children, were exempted from accessing legal aid to fight their previous employers for gender discrimination.
The impact that the lack of access to legal services has on women has been documented. But where there is an intersection of gender with other factors, access to justice can be even more elusive. Disabled women are twice as likely to encounter domestic violence, and women of color face higher levels of discrimination in workplace settings. Cuts to civil legal aid mean that these women are doubly denied access to justice. CEDAW’s report, for example, expressed concern that without access to legal aid, women from ethnic minorities will have to rely on “informal community arbitration systems,” which do not conform with states’ duties under the CEDAW Convention because these systems do not protect a victim from being coerced into a resolution.
The role of pro bono
In the UK, pro bono should be an adjunct to, rather than a substitute for, a fully funded and comprehensive legal aid system. As manager of the Debevoise London pro bono practice and with a decade’s experience working in the sector, I have seen firsthand the way that the legal needs of women, and the children they often look after, are not being met.
I met recently with a woman who had been devastated by the sudden death of her partner when the youngest of their three children was just weeks old. She told me of the anguish of breastfeeding whilst the enormity of her new single mother status began to dawn on her. After years of looking after her three children on her own, and being diagnosed with depression, she finally felt able to begin therapy to come to terms with her grief. It was at this time that her welfare benefits were cut, leaving her in a one bedroom house sleeping on a sofa, living hand to mouth. There was no legal aid for her to appeal the decision, and so Debevoise helped her on a pro bono basis, winning the appeal and getting her benefits payments retroactively.
It is important to be vigilant of seemingly gender-neutral legislation and regulations that have a more negative impact on women. Yet we should also take heart to see that many of the alarm systems we have in place to flag inequality and discrimination are working. Advocates for international law and the UN, domestic bodies such as the ECHR, and crucially, NGOs and activists, are unceasing in their efforts to combat these injustices and to hold accountable those that might perpetrate them. We are happy that we can do our small part.