Legal Aid Minister in Justice Committee: Some Thoughts

Jonathan Djanogly appeared today before the Justice Committee. He’s learned from Ken Clarke to make the obligatory historical mistake (claiming a Labour government opened up legal aid to the NFP sector when it was in fact the Conservatives that did this, Ken Clarke has said legal aid should go back to its historical roots (which would be divorce)) but apart from that rather trivial point he did a reasonable job I thought, from the Government’s perspective, of not deviating from the Government’s line on cuts. One or two interesting points emerged which it may be worth dwelling on.

If I followed the debate correctly, the Minister appeared to accept the point that litigants in person would increase costs within proceedings. He was asked if the Government had assessed the level of such costs and he implied they had saying that it was contained within the Impact Assessment. I thought I might check. This is what the impact assessment says:

The proposed reforms might lead to a reduction in the total volume of court and tribunals cases. A reduction in total case volumes might be associated with some types of one-off court capacity adjustment costs and with other types of one-off court or tribunal capacity adjustment savings. The net position is subject to further consideration.

In addition the proposed reforms might lead to an increase in the volume of cases where people choose to represent themselves in court or at a tribunal without using legal representation (litigants in person). In this IA it has been assumed that on balance any such effect should not have a significant impact on ongoing court or tribunal operating costs.

My reading of that is that there has been no assessment of the costs that extra litigants in person will make to the system. Perhaps I am wrong. It is to be hoped the Ministry of Justice is asked to provide its workings. The Minister mentioned an IT system and a process of demystification to render courts capable of coping with litigants in person. Both those things have costs attached to them: what are they? In any event, it is important to emphasise the dubious efficacy of those things alone – Californian courts for instance have varied programmes of support for unrepresented litigants. What is HMCS planning?

In one of the more colourful moments, the Minister suggested (not unreasonably I thought) that there was an army of trained mediators (“sleepers” is how he referred to them) out there ready and willing to do mediations. It is well known that the mediation providers have trained lots of mediators but that such work is thin on the ground. It remains to be seen how well trained such mediators are and whether they are civil or family mediators, and the fact that such work is thin on the ground suggests the behavioural change the government wants to sponsor may need to be profound. But the point which most caught my attention was the claim that this shift to mediation could be achieved at a cost of £5m. I believe when Australia moved towards the kind of behavioural change that the Minister is seeking they invested the equivalent of £250m. For a population a third our size. I scratch my head, and raise an eyebrow.

He also made the sensible suggestion that there needs to be a cross-governmental review of funding for NFPs, which I took to mean funding for advice services. This seems to me to be a very good idea, but one which needs to be done before legal aid cuts are implemented on this part of the system, and in the light of local government funding cuts to advice services which are a crucial part of the equation. I am imagining the Minister will be being advised this is not an easy job. Indeed it was tried once before when Derry Irvine tried to create Community Legal Services Partnerships.

The final point which struck me as interesting was the Minister’s response to the idea that the legal aid scheme ends up picking up the cost of problems created by other governmental bodies. The Chairman, Sir Alan Beith, made the telling point that if the government is serious about behavioural change they should introduce stronger ‘polluter pays’ requirements into government budgets. The Minister’s response was to suggest that the Government is doing this through some recoupment of tribunal costs. I’d be interested to learn more about this, but it seemed to me that this was confined to part only of related tribunal costs and I could not see how this related to advice costs. He also only ever spoke of the problems created by the DWP. Is there a broader polluter pays project? What about the UK Border Agency for instance? If the polluter pays principle has been established, why not make it stronger and encourage real behavioural change on the organisation most responsible for driving legal need: the Government? The Minister suggested that polluter pays is simply robbing Peter to pay Paul. There is some truth in that, but only if incentives do not produce behavioural change. Government departments not required to pay for their mistakes have weaker incentives to not make mistakes. If the government is serious about behavioural change it should apply some of the incentives medicine to itself.

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About Richard MOORHEAD

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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4 Responses to Legal Aid Minister in Justice Committee: Some Thoughts

  1. Linda Knox says:

    I would like to make a comment with regard to legal aid reforms after having recently read many many articles. I believe that reforms that Justice Jackson proposed with regard to ‘No Win No Fee’ (CFA’s) and the extortionate ‘success fees’ are going to be overlooked and this whole discussion with regard to legal aid is taking over and this will be a traversty. Why am I concerned? Well, we purchased a defective product (as any man in the street could easily do) due to this we have been defending a civil litigation case where the claimant has a CFA for 6 years. Because he has the protection of no win no fee, we have been taken into court on several occasions over petty disputes, racking up huge costs. We have no way to get out of this situation other than to pay the claimant huge amounts we cannot afford and do not feel we owe. This is over a £12,000 claim and should be we to court and loose, we may be facing costs in the region of £200,000 – £250,000 due to ‘success fees’ that the judge could award.

    We will loose our home and everything we have if this is allowed to happen. Justice Jacksons reforms we trying to prevent this kind of thing happening but now all anyone is focusing on is legal aid and using the excuse that there will be people who cannot afford to persue their cases due to lack of funds.

    Someone needs to point out that greedy solicitors who take the risk of a CFA’s should suffer the concequences themselves and it should not be at the expense of a defendant. We are a low income family who quite innocently contracted a company to manufacture something for our home and we are now looking at loosing that home due to extortionate ‘success fees’ and the fact that the claimant, who, by the way, owns and large property in a wealthy area, a holiday home, runs his own business and has several expensive cars, he did not need such assistance.

    Do you agree that this is not justice or fair? By the way it was admitted by the claimant during mediation that the product was defective but as it was in mediation we cannot repeat that so as you can see if justice was being done, we would win the case but against a huge firm of solicitors that have £100’000s profits each year what chance have we got?

    • Richard Moorhead says:

      Dear Linda,

      I don’t think there’s any likelihood that LJ Jackson’s proposals will be ignored. The Government consultation on them closed on Monday and we wait to hear how the Government will respond.

      • Linda Knox says:

        Dea Richard
        I can only hope that this will happen and be implemented as soon as possible and hope that it is ‘success fees’ that are either greatly capped or abolished totally. Many thanks for your reply

  2. Pingback: UK Struggles with Possible Negative Impact on Court Operations of Legal Aid Cuts. Discussion of “Polluter Pays” | Richard Zorza's Access to Justice Blog

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