Beware the poor lawyer: the legal aid reform responses

18 February 2011 by Maria Roche

The consultation on the Government’s proposed reforms of legal aid closed on Monday 14th February. The reforms amount to a substantial reduction in the scope of and eligibility for legal aid.  When opposition to reform of access to forests can force a Government U-turn, can opposition to reform of access to justice do the same?

In a recent interview with the Daily Telegraph,  Clarke was said to be sanguine about criticism of legal aid cuts:

Oddly enough, I’m not in as much difficulty as I thought.

His inbox may, therefore, have come as a surprise on Monday morning.  Jonathan Djanogly, the Parliamentary Under Secretary of State with responsibility for Legal Aid, told the Justice Committee that 5000 responses to the consultation on the proposed reforms of Legal Aid had been received.   Justice for All, the coalition of community groups, charities and  legal and advice agencies campaigning against legal aid reform, said more than 4000 people had taken part in their campaign to send the Lord Chancellor Valentine’s Day messages of support for legal aid.

5000 responses

Naturally, all 5000 responses cannot be reprised here – not all are public, many are extremely lengthy, some defy summary.  A selection of views are outlined below.

The Bar Council, the governing body for all barristers in England and Wales, in their lengthy response to the Consultation Paper on the Proposed Reforms consider that

… the thrust of these proposals is constrained to the demolition of much of the architecture of legal aid upon which so many disadvantaged members of the public rely….  We recognise the value of reform but the legal aid system must provide full and proper assistance to those who really need it.  The scope of legal aid must not be crudely chopped but re-drawn in such a way as to ensure that vulnerable individuals continue to be protected.” [§2-3]

Specific objections raised by the Bar Council include:

(1) The detrimental effect on vulnerable people:  including the risk that vulnerable adults remain trapped in situations where they are exposed to (increasing) risk of harm:

In many instances those entering the family and civil courts are socially, intellectually, emotionally or economically disadvantaged.  If they experience difficulty in obtaining the advice they clearly require, then many abandon  justice – compromising the very rights and freedoms which underpin our society, and more worryingly, possibly imperiling the lives of [the] vulnerable.” [§8]

(2) Uncertain and/or detrimental effect on the public purse:   the Bar Council criticise the reforms as being “far from clear as to exactly what savings are sought” [§54] and note that the reforms lack any over-arching principles in the allocation of savings across areas of legal aid [§61-62].  Contrary to Jonathan Djanogly’s reported statement that “at more than £2billion a year, we pay far more per head than most other countries for legal aid“, the Bar Council produces figures from a Ministry of Justice study that illustrate that the UK total spend on publicly funded legal services is broadly in line with European countries such as Sweden and the Netherlands, and it is only the allocation between legal aid and court costs that differs [§70].

The thrust of the criticism is that the effect on court or tribunal operating costs of the increase in litigants in person has not been properly assessed [§15, §107].   The evidence is that there are generally fewer hearings where both parties are represented  [§96(b)] and hearings are less likely to overrun [§96(h)].  Effectively, spending  public funds on more protracted and more numerous hearings, rather than experienced lawyers, does not amount to a saving to the public purse.

It is further noted that removing an area of legal redress from scope does not resolve the original problem, it merely pushes the problem on to a different public service [§14].

The Bar Council conclude that

The savings sought of £350 million will not be achieved by the Government’s proposals – indeed we are certain that costs will increase, because of inevitable downstream effects on court costs.” [§54]

(3) Negative effect on diversity and equality

The Bar Council’s comments on diversity and equality is premised in part on their:

alarm by the lack of evidence underpinning some of the key proposals set out in the Green Paper, particularly relating to clients and the Bar. In relation to clients there is insufficient date relating to disability and ethnicity. The existing data relating to gender is concerning” [§77]

The Bar Council argue that the current approach will have a direct effect on equality and diversity at entry-level as:

there is a significant risk that only those with access to other income, such as assistance from parents, will be able to afford to enter the legally aided bar, especially as the changes to tuition fees will increase the level of student debt accumulated before entering the profession” [§90].

The evidence provided by the Bar Council illustrates that women, both caucasian and Black and Ethnic Minority [‘BME’], tend to have a greater percentage of their practice made up of publicly funded work. Cuts in criminal legal aid are likely to have a disproportionate effect on BME members because a higher proportion of BME practitioners undertake publicly funded work [§46]. One third of BME females report more than 91% of their practice being publicly funded [§81(e)].  The reforms are thus likely to have a greater detrimental impact on female and BME practitioners which, in time, will have an effect on the diversity of the judiciary, a concern the Report of the Advisory Panel  on Judicial Diversity 2010 raised:

any disproportionate impact on women and BAME professionals would be a cause for concern, as it would impact upon the eligible pool for judicial office. This needs to be closely monitored.” [at §69 of the Report].

(4) Negative Effect on the Rule of Law and Human Rights

The Bar Council argues that the negative effects outlined above undermine the regulatory objectives as set out in the Legal Services Act 2007 including the objective of “improving access to justice” under section 1(1)(c), particularly if the reforms result in inequality of arms [§49] and the objective of “encouraging an independent, strong, diverse and effective legal profession” under section 1(1)(f)  if the reforms, as expected, have a negative effect weighted towards female and BME lawyers [§47].

The Bar Council considers that:

the quality of justice will be strained, and very severely… The quantity of justice will be restrained too.” [§54]

The Bar Council notes that restrictions on legal aid will have a particularly negative effect on certain areas including:

• Family cases involving abuse – the Bar Council raise the anomaly that if an alleged sexual assault or abuse is the subject of a monetary claim or criminal proceedings legal aid will be available, but if the same is the issue of family proceedings where a child may be removed from the family, legal aid will not be available.

• Clinical negligence cases – a particularly controversial area, as previously elucidated by Henry Witcomb of 1 Crown Office Row.   The Bar Council notes the fundamental inequality of arms between the funded doctor and the unfunded claimant [§124], examines the difficulties of CFAs for clinical negligence and that the new regime seems ill-suited to such cases [§112(h) and §161] and recommends that clinical negligence should not be withdrawn from scope for claims by children [§161(h)]. The Bar Council also considers:

that the particular problems faced by victims of clinical negligence in obtaining access to justice mean that the state would be failing in its duties under Article 6.1 if some form of assistance by way of civil legal aid were not available: see Airey v Ireland 2 EHRR 305” [§112(d)]

It is worth noting that in a recent survey for the Access to Justice Action Group Response to the Proposals for Reform of Civil Litigation [the Jackson report], only 19% of respondents felt that the cuts should include reducing or not paying compensation for NHS negligence [pg 77].

• Criminal Injuries – the Bar Council considers it would be counterproductive to recent advances in recognition of the rights of victims of crime for the efficacy of their claims to the criminal Injuries compensation Authority to be impeded by lack of legal advice [§163]

As to the effect on human rights, the Bar Council considers that:

cuts in public funding for those who are the most vulnerable in our society will indeed have the effect of denying “effective” rights of access to the Courts; it is “effective” access which Article 6 [of the ECHR] guarantees” [§146]

The Bar Council refers to the recent case of  DEB DeutscheEnergiehandels‐ und Beratungsgesellschaft mbH v Germany (Case C‐279/09) (delivered on the 22nd December 2010) in which the Second Chamber of the European Court of Justice  held that:

“the granting of legal aid is a measure of social assistance which is derived from the principle of the social State and is necessary for the safeguarding of human dignity” [§24 of the judgment]

and “it is for the national court to ascertain whether the conditions for granting legal aid constitute a limitation on the right of access to the courts which undermines the very core of that right” [§60 of the judgment].

The Law Society, which represents solicitors and is now wielding Joanna Lumley as a supporter of its Sound Off for Justice Campaign, has now released its full formal response.  It believes:

Not every country is cutting its legal aid budgets… other countries recognise the importance of access to justice to the extent of ring-fencing and even increasing provision despite the financial pressures… We therefore do not accept the premise that cuts to the legal aid budget are anything other than a political choice.  It is a choice that we regard as deplorable” [§1.5-1.6]

The Law Society disavows the Government’s view that people bring disputes to court too readily as:

One man’s ‘unnecessary litigation’ is another’s holding of Government and others properly to account …” [§1.8]

The Law Society raises particular issues with the Green Paper including that a non-legally aided alleged perpetrator of domestic violence will be obliged to cross-examine the alleged victim in family proceedings (unlike in criminal proceedings) [§2.4.7]; that the impact on children of the family legal aid reforms has not been considered [§2.8.3]; and that the proposals for the removal of education from the scope of legal aid gives insufficient weight to the fact that such cases ‘may affect a child’s educational and future life choices’ and the children affected are likely to be disabled and/or those with special educational needs from deprived backgrounds [§2.18.1].

FRU, the Free Representation Unit which provides advocacy services in tribunals for social security, employment and criminal injuries compensation cases, notes their opposition to the withdrawal of Legal Help in those areas, as it is both cheap [§3(4)(a)(vii)] and reduces the amount of litigation [§3(4)(a) and (c)].   FRU comments that:

There is an implication in the paper that legal aid encourages litigation, especially unmeritorious litigation. In our experience, in the areas of social security, employment and criminal injuries compensation cases, the reverse is true.  Our experience is that legal aid practitioners divert cases away from tribunal, by resolving issues.” [§3(4)(c)].

In considering whether people could represent themselves before such tribunals, FRU reminds the government that the relevant substantive law is difficult to understand, the application to the facts frequently not straightforward and FRU’s own volunteers, despite being articulate students of law with training in the relevant legal areas, often require assistance [§3(4)(d)].  FRU concludes:

the law … is thus complex and the process is forbidding to legally aided clients. In the absence of legal aid for representation, the availability of Legal Help is far better than nothing [§3(4)(f)].

Liberty in its response states that:

Liberty believes that the proposed reforms will create alarming gaps in protection, denying justice to many but hitting the most vulnerable the hardest … This will not simply lead to injustice for the individuals involved, but will contribute towards a culture of impunity amongst the rich and the powerful”. [§2]

Liberty considers that a meaningful human rights culture cannot be fostered without access to justice [§10] and that important human rights are at stake in many of the areas of law earmarked for removal from scope [§11]. Liberty raises the concern that  ‘excluded’ areas of law remain beyond the scope of legal aid at every level of court, leaving all but the wealthiest litigants to present extremely complex legal arguments before the Court of Appeal and the Supreme Court [§11].

Liberty also draw attention to Lord Jackson’s comments on the vital necessity of making no further cutbacks in legal aid availability or eligibility:

the legal aid system plays a crucial role in promoting access to justice at proportionate costs in key areas. The statistics set out elsewhere in this report demonstrate that the overall costs of litigation on legal aid are substantially lower than the overall costs of litigation on conditional fee agreements. Since, in respect of a vast swathe of litigation, the costs of both sides are ultimately borne by the public, the maintenance of legal aid at no less than the present levels makes sound economic sense and is in the public interest.” [§4.2 of Lord Jackson’s report]

It was worth noting that the consultation on the Jackson report also closed on Monday. Given the interrelated nature of the funding changes for the civil legal system,  a sequential or joint consultation might have been more effective.  The Bar Council’s response to that consultation can be found here.

It could, of course, be argued that “turkeys don’t vote for Christmas“, but the responses aren’t just from lawyers and legal groups. Among other groups,  Camila Batmanghelidjh wrote with eloquence on the importance of access to justice for the children supported by Kids Company:

I know from the children I work with how important legal aid has been in maintaining their allegiance to civil society. The judges of this country remain outstanding representatives of social justice: it’s only when we get to the courts that children denied housing, education and social care are ensured their rights to dignity and justice. As one boy said when we won a judicial review: “The Queen is on my side.”

Shelter added their voice stating that:

All welfare benefits advice is to be excluded from scope of legal aid. … We believe issues concerning financial entitlement are extremely important when they concern the only source of income a client has. These clients are by their very nature the poorest in society … Welfare benefits law is complex and very often claimants are elderly, ill, disabled or otherwise vulnerable. They rely on their benefits for food, clothing and housing and to participate in society.

To compound this, the proposals come at a time of major upheaval in Housing Benefit and with an entirely new benefits system (the proposed Universal Credit) in the pipeline that people are likely to need legal advice to understand and challenge.” [page 4 of Shelter’s Response].

The Disability Charities Consortium, an informal coalition of seven disability charities [Leonard Cheshire Disability, Mencap, Mind, RNIB, RNID, RADAR and Scope], raised the specific problems the reforms present for disabled people:

“A claim in relation to discrimination will often be intrinsically connected to other claims such as unfair dismissal, consumer issues or special educational need. Most people do not recognise that they have a potential discrimination claim, and this only comes to light after initial legal advice has been sought … [pg 2]

Excluding housing, debt, welfare benefits, education, employment and family law from the scope of legal aid will have a disproportionate impact on disabled people, as they are more likely to experience issues in these areas … [pg 2]

We  ..  also oppose .. the removal of clinical negligence, which will disproportionately affect disabled people who are more likely to need to litigate these issues, by nature of their greater need for treatment [pg 3]

The proposals [on financial eligibility] fail to take into account the extra costs of living with a disability … Taking money from small amounts of savings [people with £1000 are to contribute £100 to their costs] would mean the sacrifice of essential disability-related items, presenting a barrier to accessing legal advice and representation.” … [pg 4]

A seismic shift

A fuller list of responses can be found on ilegal.   It is clear that the Green Paper amounts to a “seismic shift in the landscape of the civil and family justice system” [Bar Council Response §393].  It will be interesting to see if the objections raised by the Bar Council and others could/will eventually form the basis of a legal challenge to the reforms, if implemented as proposed.

As Paul Mason, the Economics Editor of BBC’s Newsnight, commented in relation to events in the Middle East, revolution is generally:

not the product of poor people but of poor lawyers. You can have political/economic setups that disappoint the poor for generations – but if lawyers, teachers and doctors are sitting in their garrets freezing and starving you get revolution. Now, in their garrets, they have a laptop and broadband connection.”

Mr Clarke may find that he needs to beware the poor lawyer.

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