Thu, 08 Sep 2011
Good Summer? Holiday relaxing? Incensed by the riots? Encouraged by events in Libya?
Incidentally, did you know that the government has been quietly dismantling the legal aid system? It doesn't accept that for a moment, of course. Almost everyone else, however, thinks that the ‘Legal Aid, Sentencing and Punishment of Offenders Bill’ ignores some basic principles of justice and democracy: that access to justice for the poor and disadvantaged is a key test of a fair society; that the ‘tortfeasor’ (wrongdoer) who injures someone should pay up and, that a mature, principled government should listen to reasonable responses to its ‘green’ (consultation) papers.
The Law Society, representing solicitors, described the Bill as "the single biggest attack on state-funded legal advice for the poor and vulnerable since the legal aid system was introduced". In his Ministerial Statement of 21st June 2011, the Lord Chancellor, Secretary of State for Justice, Ken Clarke, said that the government is “committed to overhauling our system of civil justice”, but accepted that “Legal aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits”.
The Bill reverses the general availability of civil legal aid, abolishes the Legal Services Commission delivering it, and provides that even winning litigants will have to pay the additional costs that lawyers and insurance companies charge for up-front legal funding.
Legal aid will only be available for limited categories of cases "where people's life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care”, but “most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits" will be excluded.
Claimants will have to pay success fees, the incentive for lawyers to take on 'CFAs' ('no win, no fee' agreements), from their damages, even when they win. And, subject to a limited concession in clinical negligence cases, the 'ATE' premiums (by which claimants insure themselves against defendants’ costs), will also come from damages. The government says that it’ll mitigate this by a 10% increase in 'general damages' (for pain and suffering), but the figures simply don't add up.
The Bar Council, representing barristers, described these proposals as "the demolition of much of the architecture of legal aid upon which so many disadvantaged members of the public rely".
Chairman, Peter Lodder QC, said: “The government has failed to listen to the views expressed by many in the judiciary, the legal profession and voluntary organisations in formulating its proposals on legal aid. Legal aid will be withdrawn for whole swathes of areas of law and access to justice will be systematically deprived”. Law Society President Linda Lee said that thousands of victims of medical accidents would be denied access to justice.
But they would say that, wouldn't they? Aren’t they self-interested lawyers? Hasn't the Ministry of Justice got to cut £350 million? As Ken Clarke said, isn't legal aid "now among the most expensive systems in the world... costing over £2 billion a year, or £39 per head of population", compared with other countries?
No, actually. The MoJ’s own figures show that spending on publicly funded legal services is similar to other European countries. Only the allocation between legal aid and court costs differs.
So ignore the effect upon the less well-off, the vulnerable, women and ethnic minorities. The proposed savings simply don't make economic sense. People driven to represent themselves cause more and longer court hearings. Spend less on legal aid and research shows that you'll just spend more on running the courts, further down the line.
And the government can injure you in hospital via the NHS, but then won't fund your claim for lifetime care. One might be tempted to ponder the value of ring-fencing Health Service spending to improve health and welfare, if you don't protect access to the courts when things go wrong.
Other countries recognise the importance of access to justice by ring-fencing legal aid provision. The Law Society argues that what's happening is simply "a political choice", which is "deplorable". Labour’s Shadow Justice Secretary, Sadiq Khan MP, said that these "economically short-sighted" cuts will hit “the most vulnerable in society, devastating law centres and the Citizen’s Advice Bureau network” , and increase cost downstream to the taxpayer.
The Bar Council and the Law Society suggest other ways of making savings. But don't just listen to the lawyers or the opposition. Judges, charities, housing organisations and free providers of legal representation all say the same. Sharmi Chakrabarti, the Director of Liberty, questioned: “Is it right that only criminal defendants and professional footballers should get legal advice? Politicians wag their fingers at ‘fat cat’ lawyers, but today’s slap in the face goes to ordinary families, children and the disabled”.
Even the NHSLA, the government body representing hospitals in medical claims, wants to preserve legal aid, accepting that many injured patients couldn’t bring actions under the new system. It favours the status quo to avoid shifting the costs from the legal aid budget to the NHS: "…implementation of this proposal...would result in an overall increase in public expenditure, rather than the decrease which is sought...Overall, we are strongly in favour of retaining legal aid for clinical negligence cases using current eligibility criteria".
Is the government really listening? We seem to be in the middle of a 'Perfect Storm', comprising the budget deficit crisis, concerns about family and even social breakdown, the effective abolition of civil legal aid, attacks on alternative means of funding litigation and the ideological shrinking of central government.
As the legal aid ship founders, some lawyers might go under but most won't go down with it, but adapt, remaining the committed professionals they are. In terms of access to justice, it's the weak and disadvantaged of society who'll sink, without the vital lifeline of legal aid.