Legal aid in the past few years has been governed by a fixed budget that covers both criminal and civil cases. However, the growth of essential funding for criminal cases has meant that there is less money available for civil cases such as housing and family law. Thinking it will save money, the Government wants to point people with grievances away from litigation and towards mediation and complaints systems.
In the past the Government has suggested that a key policy objective of legal aid is to tackle social exclusion. But civil legal aid is becoming the Cinderella of the Government's services to address social exclusion and poverty. The Government says that it is determined to establish a system of funding which ensures that public funds are spent in the most practical way, so that funds are available to target the most needy and deserving cases. This means that everyone else, of course, gets less.
The changes are focused on family cases where litigants will be expected to make more use of out-of-court remedies. The Government has drawn back from the brink of removing legal aid from judicial review and civil actions against the police. The initial proposals would have directed people towards no-win, no-fee agreements with lawyers, for cases that often involve no award of compensation at the end.
Opposition from many NGOs seems to have put these proposals on hold for the time being.
However, to discourage unnecessary litigation, in clinical negligence cases and actions against the police the Government says that most applicants will be expected to pursue any available complaints system before they are funded to take proceedings. This will give the potential defendant public body the chance to respond to the matters raised and provide an explanation or apology if appropriate before it is decided whether litigation is an appropriate remedy for the client.
The announcements do not mention that the NHS complaints system has been castigated by the health service ombudsman as unfit for its purpose and in need of radical overhaul; nor that the new Independent Police Complaints Commission is less than a year old and, as yet, there is no measure as to how it is performing.
The Government is consulting further on the use of complaints systems before litigation is commenced. It can expect criticism from many quarters: NGOs, the ombudsman, lawyers advising claimants, and maybe those running complaints systems facing an upsurge in the use of already underfunded procedures.