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.