Marc Willers received the award for Barrister of the Year at the 2011 Legal Aid Lawyer of the Year awards in June. He reviews the impact that the proposed changes to Legal Aid will have upon the provision of advice and representation in civil cases.
Access to justice is under grave attack by the Coalition Government. The Legal Aid, Sentencing and Punishment of Offenders Bill 2011 (the ‘Legal Aid Bill’) is currently before Parliament and if it is enacted then it will result in severe and swingeing cuts to public funding for advice and representation in a wide spectrum of civil cases.
Our Legal Aid system was created just over 60 years ago, by the Legal Aid and Assistance Act 1949 and has been described as one of the pillars of the welfare state. Those responsible for devising and shaping the Legal Aid system understood that we must ensure that justice is available to all citizens, irrespective of their means, if the rule of law is to have any real value.
Since 1949 there has been a significant growth in the scope of Legal Aid and the number of cases covered by public funding. It has been very successful – not just for individuals but for the greater good. Many important cases have been taken which would not otherwise have been litigated and landmark decisions have led to improvements in the lives of countless individuals and changes in policy and law which have benefited society as a whole.
There is no doubt that our current Legal Aid system is costly. In 2008-2009 £2.1 billion was spent on the provision of Legal Aid (£1.2 billion of that sum was spent on criminal legal aid). In 1999 the Labour Government took steps to reduce its spending on Legal Aid. The Access to Justice Act 1999 reduced the scope of Legal Aid – specifically removing personal injury cases from cover on the basis that they could be run on a conditional fee basis (where the lawyer could claim an additional fee in the event of a successful resolution). There were other types of cases also removed from scope – though the Legal Services Commission (the body currently responsible for Legal Aid) was given the discretion to grant Legal Aid for such cases in exceptional circumstances, for example, where the client was vulnerable or there was a significant wider public interest or the liberty of the client was at stake.
In November 2010 the Ministry of Justice published a consultation paper entitled ‘Proposals for the Reform of Legal Aid in England and Wales’. The Coalition Government suggests that the changes will reduce the cost of the Legal Aid system by £350 million. Those savings will be achieved by a number of controversial measures, which include the drastic reduction in the current scope of Legal Aid by:
- removing clinical negligence from scope – whatever the vulnerability of the individual;
- limiting the provision of Legal Aid in housing to cases where homelessness or loss of home is threatened or where there is a serious risk that disrepair will harm the health of the individual;
- removing employment from scope, save in cases involving discrimination
- removing education from scope;
- removing debt advice and representation from scope, save in cases where an individual’s home is at risk;
- removing welfare benefits advice from scope;
- limiting the provision of Legal Aid in immigration to cases where the individual has been detained, or is fleeing from persecution or otherwise seeking asylum;
- limiting the provision of Legal Aid in family cases to those instances involving domestic violence, forced marriage and child abduction.
If those proposals are adopted then more than 600,000 cases will be removed from scope (that is, nearly 70% of the cases currently covered by Legal Aid). Bizarrely, the Coalition suggests that the gaping hole left by its proposals can be filled by alternative dispute resolution, mediation and the provision of advice and assistance by the not for profit sector – at a time when their funding is being drastically cut!
There were more than 5000 responses to the consultation paper, the vast majority of which urged the Coalition to protect and conserve Legal Aid in its current form and to find savings and increase revenue elsewhere. Those respondents made many different points but perhaps the most compelling arguments against the Coalition’s proposals are that:
- they will inevitably result in more people being unrepresented and as a consequence there will be gridlock of the court system, delays in the dispensation of justice, and increased court costs – thus, the Judges Council stated that
‘The proposals would lead to a huge increase in the incidence of unrepresented litigants, with serious implications for the quality of justice and for the administration of the justice system in terms of additional costs and delays – at a time when the courts are having to cope in any event with closures, budgetary cutbacks and reductions in staff numbers … Even if one focuses on cost alone, there is a real question whether the cost savings arising from the proposed cutbacks in the scope of civil and family legal aid would be offset by the additional costs imposed on the system’;
- in many cases litigants in person will not have ‘equality of arms’ and as a consequence may not receive a fair trial, in violation of Article 6 of the European Convention on Human Rights and Article 47 of the European Union Charter of Fundamental Rights which provides that
‘Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice’;
- the provision of Legal Aid often leads to the early resolution of cases and thereby saves the public purse money – thus, the Children’s Legal Centre said
‘In many of our cases at the CLC, the provision of legal advice and assistance can help resolve problems quickly and prevent matters from escalating. Removing access to legal advice in many civil and family law matters removes the possibility for problems to be resolved early and efficiently without the need for litigation’.
- a cost-benefit analysis by the Legal Services Research Centre in 2009 demonstrated that the funding of civil Legal Aid represents good value for money (for example, for every £1 of Legal Aid spent on housing advice, the state potentially saves £2.34 and for every £1 spent on benefits advice, there is a potential saving of £8.80) and a report published by the European Commission for the Efficiency of Justice in 2010 showed that the annual budget allocated to our courts and the provision of Legal Aid as a percentage of the Gross Domestic Product per capita in 2008 was close to average budget allocated by 35 other European states.
On 21st June 2011 the Coalition Government introduced the Legal Aid Bill in the House of Commons. The Bill contains all the proposals for the removal of civil cases from scope. The strong arguments for maintaining the current level of provision have been ignored by a Government which is intent on pursuing its policy of fiscal deficit reduction, whatever the cost to justice.
The sad fact is that the reduction in the scope of civil Legal Aid will increase the gap between rich and poor and limit the ability of those most vulnerable members of our society to access justice.
When delivering the Sir Henry Hodge Memorial lecture in June on ‘Equal Access to Justice in the Big Society’ Baroness Hale warned that the Legal Aid cuts will have a ‘disproportionate impact upon the poorest and most vulnerable in society’ and noted that the Legal Action Group feared that the proposals ‘would lead to an underclass of people disenfranchised from civil justice and indifferent to the rule of law.’ Significantly, the Government’s own equality impact statement acknowledged that the proposals will have a disproportionate impact upon women, ethnic minorities and people with disabilities.
What can we do to try to prevent the Government from demolishing much of our Legal Aid system? The Legal Aid Bill is currently being considered by a select committee in the House of Commons and it will be sent to the House of Lords on 13th October 2011. There is still time for us to influence MPs and members of the House of Lords and we must do all that we can to make the case for the retention of Legal Aid in its present form. Write to your MP and your local newspaper. Alternatively, lend your support to Justice for All, a coalition of organisations and individuals that is at the forefront of the campaign against the proposed changes. Let’s do all we can to try to persuade the Coalition Government to place value in our justice system and the provision of civil Legal Aid and not sleepwalk into a situation where access to justice becomes the prerogative of the rich.