The legal aid bill: a stroke of genius or a complete cock-up?

I'll give them this, the coalition government has a thick skin. Having only passed the Welfare Reform Bill by one vote last week and still dragging the Health and Social Care Bill kicking and screaming through the House of Lords, today it attempts to squeeze the Legal Aid, Sentencing and Punishment of Offenders Bill (Laspo) past growing opposition from peers.

I’ve written quite a lot about this pernicious piece of legislation, but its impossible to over-emphasise the devastating impact it would have on access to justice for the poorest and most disadvantaged in society. With that in mind, here’s another run through some of its most important bits.

This morning on Radio 4’s Today programme Ken Clarke was quite unembarrassed about saying his legal aid cuts are aimed at lawyers and would not harm access to justice for the disadvantaged. If he really were just taking money away from fat cat lawyers, or even some slightly skinnier ones, I would probably be cracking open the champagne. But he’s not. The lawyers who do legal aid, all four per cent of them, earn around £25,000 a year. A lot less than Ken, and they’re a lot more useful.

If the bill is passed, future access to the civil legal aid scheme will be through a single telephone gateway. A report by the Legal Services Research Centre, and apparently ignored by the Ministry of Justice, shows that telephone advice takes, on average, 14 minutes longer than face-to-face services.

This independent report also failed to find any reliable evidence to support claims that telephone advice better caters to the needs of clients, enhances ease of access or delivers value for money. Which is probably why public law barrister, Tim Baldwin of Garden Court Chambers says: ‘The notion that things can all be dealt with over the phone is a complete and utter fallacy’

As if adding insult to injury, the telephone operator who will determine whether or not a caller is eligible for legal aid will not be legally qualified. But many of those seeking access to legal aid have complex problems, including people with disabilities, the elderly, the ill and carers, and may well have difficulties communicating by phone. Mind you, the operator could get round this problem by answering calls automatically with ‘computer says no’.

The government claims that all the legal problems that will become ineligible for legal aid can be solved by mediation. Admittedly I haven’t met many mediators, but of the ones I have met, not a single one thinks this is the case. Even if there is enough money thrown at it, mediation is not a suitable way to plug the gaps. Many clients won’t be able to reach a settlement without legal advice or know if it’s fair, a situation made even more worrying if one side can access legal advice and the other can’t.

And then there are those problems that will be ineligible for funding. Last week the Ministry of Justice gave in to pressure and announced that claims for brain damage at birth due to clinical negligence would receive legal aid. A welcome concession, but one that makes the decision to take all other clinical negligence cases out of the scope of legal aid even more irrational.

The government also agreed to widen the definition of domestic violence used in the bill, which, it says, will ‘put it beyond doubt that those who have suffered physical, psychological or financial domestic abuse will continue to receive legal aid’. Very magnanimous of them. Unfortunately, victims could still end up without the ‘right kind of evidence’ to get the support they need to escape violent partners. It is not, therefore, exaggerating to suggest women and children could die because of legal aid cuts.

But it will all be ok, as anyone who can’t get legal aid will be able to fight their case on a no-win, no-fee arrangement, also called a conditional fee agreement (CFA). Or maybe not. The government is also proposing to change the way in which CFAs operate, because, it says, we are living in a compensation culture in which anyone and everyone wants to have a go. Never mind that the system has enabled people from Milly Dowler’s family to residents suffering nuisance from a sewage works in Isleworth to bring claims.

The changes to CFAs, based on a review by Lord Justice Jackson, will mean claimants, rather than losing defendants, will have to pay their lawyer’s success fee out of their own damages and the after-the-event (ATE) insurance premium that covers them for the risk of losing and having to pay the other side’s costs. In fact, the government also plans to do away with the need for ATE insurance at all by introducing qualified one-way costs-shifting (QOCS).

It’s a stroke of genius. By having to pay success fees, claimants will have a stake in the costs of the claim, preventing all those fraudulent and frivolous claims; but by introducing QOCS they don’t have to bear the risk of paying the defendant’s costs. Except that they might if the court thinks they are being unreasonable or are wealthy enough to foot the bill themselves. So claimants may well want to take out ATE insurance anyway, just in case.

The overall brilliance of the Laspo plan may also be undermined by the fact it probably isn't going to save much, if any, money. Insurers are warning it may actually increase costs because the NHS and local authorities won’t be able to reclaim their legal fees when they win cases. This alongside all the other money that won’t be saved because cutting legal aid just means costs are passed elsewhere when people’s problems get out of control. I reckon Ken might save about £50 if he's lucky.

This might all be acceptable if the public supported it. However, a poll for the Legal Action Group found 82% of people believed that free advice should be available to those with incomes on or below the national average wage. Steve Hynes, the LAG director, said: ‘At what point has the government consulted the public on what they want from civil legal aid? The message is very clear…people believe it is fair for the state to pay for advice on the common legal problems which life can throw at them’.

As I write, Laspo is still being debated and the government has suffered a hat trick of defeats in the Lords. It’s a weird kind of irony that a bunch of unelected peers with no popular mandate is standing up for what people seem to want, yet the ‘elected’ government doesn’t want to listen. But then that's the definition of 'thick skinned': largely unaffected by the needs and feelings of other people.

Posted in: Legal aid

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