The Impact of the civil legal aid cuts
Public Support for the Legal Aid Scheme
Those of us who call the legal aid system the fourth emergency service know that we have to be aware of an important difference. However much money you have you can call on the NHS, the police or the fire brigade. They will not ask for proof of your income before offering assistance.
And that in a nutshell explains in part the predicament of those seeking to ensure the survival of a meaningful legal aid system.
When it was set up over sixty years ago, much of the population was entitled to advice under the rather limited scheme. Now those who are entitled are generally on benefit or benefit levels of income. Only a few types of cases are not means tested. That means that for much of the population legal aid services are not seen as something they will need to use and therefore there appears to be limited public support. Indeed the popular press love a good story about an ‘unworthy’ person receiving legal aid to fight an ‘unmeritorious’ case. Yet, as we all know, or every controversial case there are many hundreds of thousands of uncontroversial cases delivering sensible outcomes to people who need the services provided by the legal aid scheme.
Interestingly, Legal Action Group carried out a survey recently on social welfare law which identified much higher levels of support for legal aid than previously anticipated.[1]
What are the Government’s Proposals?
Taking areas of law out of scope
Much has been written about what the government wants to take out of scope including much family law (unless there is domestic violence), immigration law, a considerable amount of housing, debt matters where the client’s home is not at risk, all welfare benefits work, education, employment and clinical negligence.
There is a good summary in the Legal Aid Reform: Scope Changes Impact Assessment MOJ028 dated 15 November 2010 on pages 7 and 8 or a fuller explanation on pager 19-38.
These areas of law are all enormously important. The Government’s own Impact Assessments, published with the Green Paper look at what might result from the removal of effective intervention: reduced social cohesion, increased criminality, reduced business and economic efficiency, increased costs for other Departments. A good example of the latter is that people who previously received legal aid might use up their own savings getting advice and assistance and then end up passing a benefits threshold.
The telephone gateway
Game changing as they are, the scope changes may not bring about the most change. In the midst of the Green Paper are just over two pages flagging up what could be a very profound change – a mandatory phone gateway. There are very few details in the Green Paper and when we submitted our response we asked for a detailed consultation on this proposal. Why?
Legal advice and representation is at present available subject to what is in scope and what a person’s financial position is. After that is resolved the choice of lawyer is theirs. Under the current proposal it is possible for someone to go to their local solicitor’s office, ask to see someone who has dealt with them before and be referred on to the mandatory phone line and not be allowed to instruct the lawyer or advisor of their own choosing. Indeed in 86% of all cases, the Government suggests, the client will never end up actually seeing a lawyer or adviser face to face as the entire matter will be resolved by phone.
There is a difference between the Community Legal Advice service which is currently in existence which has a triage system, specialist advisers and has some capacity for conducting to casework to a mandatory phone service which is the only way into the legal aid scheme.
If the government brings in a mandatory phone line which everybody has to contact and which offers casework by phone, that could mean
-that vulnerable people will not be advised by anyone they choose
-that firms and organisations like law centres may struggle to deliver remaining face to face work if the legal aid fund is weighted towards telephone advice
-that reputation will count for nothing because there is little client choice
-that we have no idea how clients who do need face to face advice will be directed to advice agencies or lawyers. Will there be a rota? Will you have to take on a client who is referred? Will there be an infrastructure in place so that appointments are made directly electronically?
It is interesting to note that even those agencies that run phone services already e.g. Citizens Advice and Shelter do not agree with this proposal. For extracts, see Justice for All’s publication “Saving Justice. “ [2]
Who will be excluded?
The Government’s Green Paper stated that 547,000 fewer clients will be helped[3] (compared to 2008/9). Legal help cases will reduce by 68% and legal representation cases by 44%.[4]
However in another piece of work by Legal Action Group their estimate is that this number will be even higher.[5]
Equality of Arms (or as the US puts it Equal Justice under Law)
In LAPG’s response to the Green Paper we argued that
“We believe that it is important that the government ensures that those with a legal dispute can access an effective means of resolving the dispute. If the law is complex, if procedures are complex, if the other side can afford legal advice and representation, we do not believe that there is equality of arms. And if that person is more vulnerable – which the government’s paper confirms – then it is even more difficult to accept that these proposals offer any fair mechanism to resolve disputes in England and Wales.”
Roger Smith of Justice has in a recent meeting flagged up what is written a phrase engraved on the front of the United States Supreme Courtbuilding
“Equal justice under law".
This seems to us a fundamental problem with the Green Paper proposals. While there may be many changes that will enhance a fairly balanced justice system, to remove so much legal aid at this stage, meaning that many people will not pursue their cases or will pursue them with possibly no advice and with no representation, that means that our society becomes even more unfair.
Even where the proposals are likely to be widely supported if properly thought through e.g. better access to mediation in the whole civil system, there has to be an understanding that mediation and all forms of Alternative disputes resolution works best in the shadow of the court. Without the ability to litigate to enforce a mediated settlement or to go to court if one person refuses to mediate or is using the mediation system to e.g. delay the process, mediation is not going to be the answer the Government hopes ofr.
Litigants in Person
The Green Paper plays down what seems clear to most users of the court system, namely that if people do proceed with their cases, without advice and without representation, there is going to be a considerable additional strain on court officials and the judiciary. This will impact not only on those who struggle to present their cases, on judges who will have to spend more time on these cases but will create a backlog for everyone using the courts. Stephen Cobb QC, chairman of the Family Law Bar Association, said:
“We fear these attempted cuts, being so crude and brutal, will cost more than they save.
"They will trigger a surge in DIY litigants which risks gridlock in the courts, as they struggle to get justice.
What next?
We do not know when the government will respond to the Green Paper responses. Any major changes will require primary legislation, although the Government will want to bring in some of the proposals with as little parliamentary scrutiny as possible. The Bar Council and The Law Society will be working hard on this. If you are interested in taking steps to discuss these issues with your MPs and with Members of the House of Lords please do so and if you would like to sign to the Justice for All campaign please go to www.justice4all.org.uk. You may also like to contact the author to sign up to events run by the All Party Parliamentary group on Legal Aid.[6]
It is a bitter irony that when the government stresses the importance of localism that access to justice through local providers competing by reputation will be the casualty of these savage cuts. However difficult the task appears it is still our hope that our collective effort may induce the government to think again.
Carol Storer, Director, LAPG
[1] Legal Action Group Social Welfare Law What is Fair www.lag.org.uk/socialwlefarelawsurvey
[2] www.justice4all.org.uk page 7 Saving Justice. Where next for legal aid?”
[3] Legal Aid Reform: Scope Changes impact assessment 028
[4] Legal Aid Reform: Cumulative Legal Aid Reform Proposals 036 paragraph 41
[5] FIND REFERENCE!!!
[6] www.appg-legalaid.org Contact carol.storer@lapg.co.uk and we will email you parliamentary information and dates of meetings