Access to justice must be available for all
The combined proposals in the Government’s Green Papers on legal aid the Jackson proposals on civil litigation represent a real threat to equal access to justice and thus to the rule of law.
For cases which cannot be funded by conditional fees, the Government proposals create a very real risk that access to legal redress will effectively become impossible for the great majority of people in England and Wales.
These proposals are not only part of a drive to reduce public expenditure, but are also a challenge to the values which have underpinned the development of legal aid over sixty years. Those values have, until now, been shared by all political parties.
It is indeed difficult to make a case in purely financial terms for cutting legal aid. The financial eligibility limits for legal aid are already so tight that most of middle England does not qualify for legal aid, or cannot afford to pay the contributions.
In fact over the last 10 years legal aid has grown by under a third, whereas public expenditure as a whole has risen by over 90%. Not since the 1990’s legal aid persistently risen faster than public expenditure generally. Today, legal aid accounts for less than 1% of public expenditure – so it is barely relevant in terms of the Government’s wish to reduce the deficit.
The Government argues that legal aid funds cases which are brought only because of legal aid – if the public funding was not there the cases would not be brought, says the Government. That might be true in the sense that the parties concerned could not afford to litigate without legal aid. But that does not mean these are frivolous cases. They are important to the individuals concerned, which cannot be resolved without litigation, and let’s not forget that the merits of that litigation have been carefully assessed by an independent authority.
The proposals are particularly serious for clinical negligence cases. The very large costs and great uncertainty of many of these cases make them very difficult to fund on conditional fees, even at present. In future, if the Government implements the Jackson recommendations that after the event insurance premiums and success fees should no longer be recoverable, funding them on conditional fees will become even more difficult.
And yet these cases are vital, not only to ensure proper financial support for patients whose lives have been blighted by a medical accident, but also to ensure that lessons are learned and to drive improvements in patient safety. Those improvements are at risk if the NHS is no longer effectively accountable for the consequences of its mistakes.
Barristers across England and Wales will know first hand the impact these changes could have on ordinary people. They will also be aware of the waste in the court system, indeed in the administration of legal aid, and in other public services which contribute so significantly to legal aid costs.
The Law Society has already issued an initial campaign brief to help solicitors engage their MP’s. We will update that as the campaign progresses. We will ensure that we work closely with practitioners, other representative groups, and others concerned with legal aid and civil justice, to get the message across.
The Green Papers are a start of the process, not the final word. They are consultation documents. In many cases implementation will require primary legislation.
Alternatives
In November 2010 the Law Society published the culmination of its 18-month review into access to justice, which provided a timely alternative to the proposals in the Green Paper and are geared towards upholding the rule of law and ensuring access to justice is maintained.
In our review, we have recommended far-reaching changes. A key recommendation is recognising the large extent to which criminal behaviour results from alcohol abuse.
We suggested introducing a ‘polluter pays’ system so that the alcohol industry meets the costs of legal aid made necessary by their activities.
Alcohol abuse results in increased criminal behaviour, increased court costs and puts pressure on the legal system.
The Society’s other key recommendations for improved access to justice and legal aid includes:
- Addressing inefficiencies and poor decision making in the justice system and across Government that generate legal aid costs;
- Reducing legal aid bureaucracy and giving practitioners greater autonomy to deliver services and come up with innovative means of delivery;
- A review of civil procedure, particularly in respect to low value cases.
The Society’s response to Lord Justice Jackson’s review of civil costs outlined a number of possible reforms, including stronger case management and greater resources devoted to the family justice system.
The Government has a fundamental duty to ensure that all citizens can secure access to justice. The Government must also manage the procurement and delivery of services funded through legal aid as efficiently as possible. This is best achieved by allowing the providers of services the freedom to be as efficient as possible.
With the election of the Coalition Government in May and the proposed cuts to public expenditure, fresh thinking about sustainable legal aid and access to justice in general has become a task of great urgency. We hope this report will make a significant contribution to the debate.
Cutting the legal aid system, without ensuring that there are other means in place for people to get the expert help they need, is short sighted and a false economy, which is likely to end up costing the State more in the long term through evictions, family breakdown and long drawn out disputes, as well as through the additional costs to all other parts of the justice system of increased numbers of litigants in person.
We are realistic enough to know that the Government will have to make savings over the coming years so this report makes substantial recommendations for how this can be achieved. The keys are improving efficiency in the justice system, finding other sources of funding for cases, and reducing the number of cases for which legally aided advice is required. We also make proposals for greater involvement by solicitors in the commissioning of legal aid and improvements to the way in which the system is administered.
So now we have a choice. As a society we can either reaffirm our determination to achieve equal access to justice, or we can retreat to the narrow vision set out in the Green Papers, providing access to justice only when legal requirements force the Government to do so.
The profession’s choice is clear and I hope all barristers will work with the Law Society as our campaign to improve our justice system continues.
Linda Lee, Law Society Presidsent
Additional info :Before the alcoholism of a loved one triggers unwanted behaviors, it is recommended that you get alcohol abuse help for that person the soonest possible time.