Legal Aid

The Legal Aid Bill will turn access to justice into life?s little luxury

PUBLISHED November 24, 2011

The Legal Aid, Sentencing and Punishment of Offenders Bill will have a very damaging effect on access to justice unless substantial amendments are made in the House of Lords, where it had its second reading last Monday.

When Sir Hartley Shawcross, the Attorney-General, introduced the Legal Aid and Advice Bill in the House of Commons in December 1948, he explained that the doors of the courts were in theory open to ordinary people ?just as the Grill Room at the Ritz Hotel is open to all?, but obtaining and acting on legal advice were ?luxuries which were beyond their reach?.

The 1949 Act recognised that the rights conferred, and the duties imposed, by Parliament are undermined to the extent that people cannot enforce their legal entitlements through the judicial process. The law, and democracy itself, are brought into disrepute. The 1949 Act addressed the problem by creating a legal aid scheme by which the State funds advice and representation for the poor in appropriate cases.

Like other pillars of a civil society ? such as an efficient National Health Service, modern defence systems and effective border controls ? this costs money. Lots of it. The annual legal aid budget in England and Wales is £2.1 billion. The Bill aims to cut £350 million of that.

There are four main objections to the manner in which the cuts will be made. The first is that the Bill does not recognise that access to justice is an important constitutional principle. As the late Lord Bingham of Cornhill pointed out, ?denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law?. Clause 1(1) states that the Lord Chancellor ?must secure that legal aid is available in accordance with this Part?. Like the present statutory provision (Section 4(1) of the Access to Justice Act 1999), the Bill needs to impose a duty on the Lord Chancellor to secure, within the resources made available, that individuals have access to legal services that effectively meet their needs.

Second, the Bill removes from the scope of legal advice and assistance family law cases except where domestic violence is alleged, clinical negligence, welfare benefit cases and many other complex areas where the law is a vital safeguard of basic needs for the most vulnerable sections of society.

The removal of legal aid will result in many hopeless claims being pursued by litigants in person and in many proper claims not being brought or being pursued ineffectively by litigants in person. Do-it-yourself litigation will be as effective as a do-it-yourself medical operation.

The removal of clinical negligence cases is especially unfortunate. The victims are the unborn child and the physically or mentally ill or infirm, and the majority of claims arise out of alleged wrongs done to patients being treated in the NHS.

In family law, there will be what the Commons Justice Committee described as ?a perverse incentive? to make allegations of domestic violence to secure legal aid. A telephone helpline and mediation are not effective substitutes for objective legal advice.

Third, the Bill confers power on the Lord Chancellor by subordinate legislation to take further categories of services out of the scope of legal aid. That is inherently objectionable, and all the more so when the Bill confers no power on the Lord Chancellor to add services back into the scope of legal aid, for example if experience shows the lack of wisdom in the exclusion or when the economy improves.

Fourth, the money that the Government hopes to save by these measures needs to be assessed by reference to the financial costs that will have to be met by the State. Judges will need to deal with many more hearings in which litigants in person waste valuable and expensive court resources. The health and housing agencies of the State will have the burden of dealing with the consequences of vulnerable children and adults being denied the benefits to which the law entitles them. The Justice Committee, and the Law Society, have rightly criticised the Government for conducting no study of the costs of the provisions contained in this Bill.

In John Osborne?s 1964 play Inadmissible Evidence, the solicitor Bill Maitland (superbly played by Douglas Hodge in the present production at the Donmar Warehouse) reflects, as he suffers a mental breakdown, ?they won?t need us much longer. They?ll need no more lawyers.? The poor still need advice and representation from lawyers. If the Legal Aid and Advice Bill is enacted in its present form, it is the health of the nation that will be in danger of breaking down.

The author is a practising barrister at Blackstone Chambers in the Temple, a Fellow of All Souls College, Oxford, and a crossbench peer in the House of Lords