Access denied

Yesterday saw Ken Clarke present the Legal Aid, Sentencing and Punishment of Offenders Bill to Parliament. While the focus has been on the sentencing U-turns, that is a bit of a sideshow. Any liberal with a concern for rights, and in particular the rights of the relatively less powerful in society, should be deeply concerned. The proposals for reform of legal aid are, by any standard, alarming. David Allen Green has described them as ‘horrific and wrong-headed’. That isn’t hyperbole.

It is proposed that key areas of civil litigation will – in whole or in part – be removed from the legal aid system. The areas where coverage is being removed or restricted include clinical negligence, employment, immigration, welfare benefits, private family law (where violence is not involved), debt, housing, and education.

Yesterday’s announcement indicates that, far from being a listening government, the current Administration is partially deaf. The proposals set out in the Bill have barely altered from those sent out for consultation at the end of 2010. The intervening consultation – in which the vast majority of the 5,000 respondents were negative about proposals – and a number of high profile negative responses (eg Unequal before the law?) have had almost no impact upon the Government’s plans. Criticisms have been dismissed as special pleading by ‘fat cat’ lawyers.

The government is emphasizing mediation and other alternative dispute resolution mechanisms to fill the gap currently filled by the courts. And it is suggesting that some cases could be pursued in future on a no win, no fee basis. It is very much less clear that the sorts of cases being excluded from legal aid are the sorts of cases that can be meaningfully handled through ADR. Nor is it obvious that they are cases where lawyers will be keen to be involved on a no win, no fee basis.

There are a host of other reasons for considering these changes to be wrong-headed. They will clearly set up some very perverse incentives. For example, in family law legal aid will be available where threats of violence are involved, but not if they aren’t. Would anyone like to bet against claims of threats of violence increasing? Similarly, we can be reasonably confident that these reforms won’t save anywhere near the amounts of money the Government expects them to. For one reason, an increase in litigants in person will add enormously to costs by bunging up the courts with the inexperienced and the inexpert (as discussed eg here). Even where the MoJ might claim that it is saving money it is likely that costs are being shunted on to some other public budget.

But quite apart from the issue of costs, these reforms will indisputably increase inequalities in access to justice. As David Allen Green rightly points out, many cases get settled before they get anywhere near the court, and they are usually settled in favour of the more powerful and more wealthy party. In many cases it is the possibility – or the threat, even if remote – of the case going before a court that keeps such negotiations on the straight and narrow. Removing that possibility will increase the probability that the powerful will browbeat the powerless into an agreement – or use deep pockets to spin things out until the weaker party runs out of money.

Equality of arms is a key concept in law. It is essential for legal rights to be effective. Rights that cannot be acted upon and enforced are useless. These reforms seem intent on doing violence to some fundamental legal principles. There are vital issues here. They are issues touching directly on what sort of society we believe Britain should be.

It is possible to view the legal aid bill as too high – the reason offered for the reform – while at the same time concluding that removing whole areas of law from its compass is not the right direction in which to go. It is clear to anyone familiar with legal aid that there are some inefficiencies that could be squeezed out of the system. It is equally clear that the relatively high cost of legal aid – when examined internationally – is partly a function of the adversarial legal system we operate. That is not a failing to be laid at the door of the legal aid system.

Are these proposals ill-thought out and nonsensical? Or do they make a perverse kind of sense? One might suggest that in a context where you are implementing a broad range of changes that make access to work, benefits, housing more difficult; immigration more challenging; where a difficult economic context means employment practices are likely to deteriorate; and you are depriving the health service of funds which will increase the risk of accidents and oversights, then it would be quite handy to remove the wherewithal to seek a remedy from those most likely to be affected.

You may not wish to believe the Government is quite so cynical. But if you value justice, and abhor a society in which possessing money means you’re going to come out on top whether you’re in the right or in the wrong, then these proposals should be a cause for grave concern.

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