Enrico Bonadio and Nicola Lucchi, Non‐Conventional Copyright, Cheltenham: Edward Elgar Publishing, 2018, 520 pp, hb £130.00.
| Date | 01 November 2019 |
| Published date | 01 November 2019 |
| Author | Poona Mysoor |
| DOI | http://doi.org/10.1111/1468-2230.12453 |
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REVIEWS
Mavis MacLean and John Eekelaar,After the Act: Access to Family Justice
after LASPO, Oxford: Hart Publishing, 2019, 197 pp, hb £54.00.
For the uninitiated, ‘LASPO’ refers to that dog’s dinner, the Legal Aid, Sen-
tencing and Punishment of Offenders Act 2012. This book is concerned only
with the first part of the Act, which is not about providing legal aid but rather
its withdrawal from most private law family actions. Some might detect an
‘austerity’ cut disguised as an attack on those greedy lawyers bent on exacer-
bating family breakdown for profit, with collateral damage (eg, to children) not
immediately apparent. A set question for students in R. Lamont (ed), Family
Law (Oxford: OUP, 2018) reads: ‘Should the reduction in legal aid imposed
by [LASPO] be repealed and funding be provided to make legal aid available
to more people?’ (586). This book might provide some answers; although it is
stressed, reasonably enough, that ‘[d]ebates about the prioritisation of spending
public moneys belong in the political sphere’ (26). More recently, Sir James
Munby in MvP[2019] EWFC 14 at [119], referred to ‘the profoundly dis-
turbing fact that [the applicant] does not qualify for legal aid but manifestly
lacks the financial resources to pay for legal representation . . . The State has
simply washed its hands of the problem, leaving the solution to . . . the good
will, the charity, of the legal profession’.
After the Act contains eleven chapters, ranging from the scene-setting ‘Family
Legal Problems and the Collapse of the Supportive State’ to the intriguingly-
titled, ‘A Post-Legal World for Family Disputes?’. Between these bookends,
the authors explore various responses to the vacuum in legal aid provision,
by its government creator, the legal professions, legal advice clinics, the ju-
diciary, in-court support from ‘non-lawyers’ (a terrible term), students (via
‘clinical legal education’) and the not-for-profit ‘third sector’. The book, in
short, undertakes a socio-legal audit of efforts to cope with a fait accompli and
expresses the authors’ hopes for the future ‘in an increasingly post-legal soci-
ety’ (as the advertising copy has it). Meanwhile, the future is already happening
irrespective of academic publishing schedules. In February 2019 the Ministry
of Justice (MoJ) published its ‘Post-Implementation Review’ of LASPO’s legal
aid provisions (CP 37), inevitably colouring any reading of this book. There is
also useful comparative material. In the Netherlands, where 36 per cent of the
population was reportedly eligible for legal aid, the state provides ‘lockets’, or
legal service counters, offering both legal infor mation and (my emphasis) advice
(31). Students participating in Australian Clinical Legal Education combine a
‘strong work ethic’ with ‘enhancing career prospects’ (118) and in California
there are government-funded schemes to help litigants in person (LIPs) manage
the court process (98).
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Reviews
Predictably, the authors maintain (15-18) their lukewarm approach to me-
diation found in their earlier work, Lawyers and Mediators: The Brave New
World of Services for Separating Families (Oxford: Hart, 2016), perpetuating their
unconvincing preference for lawyer over ‘non-lawyer’ mediators. If we must
generalise at all, the two groups in my experience bring different, but equally
valuable, skills to conciliation. It is now contended that ‘[r]eplacing lawyers
with mediators is no longer the agreed panacea’ (Preface). Whilst it was in-
tended that some public funding be redirected from the former to the latter,
the two professions have always complemented one another. Mediators help
the parties to present their own agreed terms for their separation or divorce to
solicitors. Lawyers then advise on the viability of the agreement and prepare
an application for a consent order.
To what extent has government itself helped to fill the gap it created?
Chapter 2 highlights: ‘Community Legal Services’; ‘Modernising the Courts’;
the ‘Digital Out of Court Pathway’; ‘Support for the Litigant in Person’; and
‘Information Provision’. This is a useful overview and collation; though a
surprising omission from the index is Lucy Reed’s The Family Court without
a Lawyer: A Handbook for Litigants (Bath: Bath Publishing, 3rd ed, 2017),
an essential guide for LIPs and their litigation opponents. Readers might be
particularly interested in the MoJ Digital Unit’s intention not just to make
court use easier, but to avoid it altogether ‘by at least a substantial group of
those currently making applications’ (34). I am reminded of those who urge
other people’s children to take up ‘modern apprenticeships’ in order to keep
universities safe for their own scions. Similarly perplexing are the government’s
attempts to justify LASPO on the basis that the relevant disputes are private
matters (23): tell that to divorce tourists and their London lawyers! The official
line, in sharp contrast, one suspects, to the perceptions of many who will read
this book, is that the legal profession was ‘primarily to blame for the overloading
and eventual collapse of family legal aid’ (43). Sir James Munby’s analysis of
how lawyers have tried to mitigate LASPO’s impact is more congruent with
the noble ideal of pro bono (publico), an expression known to many through
American legal dramas on television.
Chapter 3 recounts how solicitors have developed pro bono activity post-
LASPO, noting how the Law Society’s Pro Bono Manual makes the business
case for such provision in terms of ‘pride and loyalty within the firm, the impact
on graduate recruitment, attracting paying clients and keeping high quality staff’
(53). On the broader front, there is little evidence of family lawyers profiteer-
ing from others’ domestic conflicts at the update events in which I participate,
notwithstanding reservations about letting the government ‘off the hook’ (81)
by working for free. One medium for such work are LawWorks Legal Ad-
vice Clinics. Chapter 4 introduces some empirical information der ived from
the authors’ visits to three different variants: court-based family legal advice;
university-organised provision (an advice centre run by local practitioners and
students and a court-based help desk staffed by lecturers with practising certifi-
cates and their students); and a family legal advice clinic linked with an advice
agency. MacLean and Eekelaar conclude that such services, despite limited
availability, can be useful but that ‘transition from a single advice session to
C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(6) MLR 1176–1204 1177
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