The legal aid reforms announced this week are widely (and rightly) proclaimed as a low water mark in legal aid history. Whilst the abolition of much of the social welfare law element of the scheme marches us back 20 years, the cuts to family legal aid return the scheme further still, to a time pre-Beveridge. Family legal aid was one of the mainstays of post-War legal aid: soon most of it will be gone. There is little to be said that has not already been said but I was struck at the recent International Legal Aid conference how many jurisdictions supported, through modest legal assistance and self-help schemes, the redirection of clients away from litigation. Our government is taking an altogether more brutal approach: withdrawing large elements of legal aid altogether.
The only pleasure that practitioners and others have been able to derive from the announcement is the expected demise of the Legal Services Commission. I understand but deprecate this. I also declare an interest, having worked with many of its employees on research projects for over 20 years since the formation of the shadow Legal Aid Board. The LSC has had its fair share of faults but also had significant successes. In World terms it was seen as a leader for its innovation not for the size of its budget. Moreover, it is likely to be short-sighted to celebrate a further diminution in independence in the administration of legal aid. The LSC failed because it overreached but also because the MoJ wanted more control over policy (perfectly properly on the whole, it just wasn’t very good at it (CLSPs anyone?)). The LSC resisted and paid the price. The basic administrative failings of the LSC (payment processing and the like) are not likely to be positively affected by abolition one iota.
As I left London to get my train home the day of the announcement, I ran into a senior retired legal aid administrator who predicted this: there will be lots of litigation. He does not mean litigation by unrepresented litigants or those taking cases under post-Jackson contingency fees. He means Article 6 cases brought against the government. This seems to me inevitable, it carries a message some will see as cause for optimism, but it is also worrying. Short term victories will be won under Article 6 which will mean funds are prioritised around Article 6. This is fine until funds are cut elsewhere to pay for such changes. Judicial review is also a very expensive way of administering a legal aid scheme. No doubt judges will be wary of intervening too much. But they will find it harder to resist the fact that Article 6 is very court- and crime-centric in its impact: this is one reason why such havoc has been wreaked on civil legal aid, and social welfare in particular. It is also why I am somewhat more sanguine than most appear to be about the possible introduction of a merits tests for police station advice. In the dog eat dog world of legal aid cuts present and future – the survival of what remains of civil legal aid will depend on reigning in criminal and child care costs. If it were me, I’d be looking harder at the the other end of the case: pleas in mitigation and system cost drivers (Crime Line’s Andrew Keogh has suggested abolishing most Pre-Sentence Reports which seems very sensible to me).
It also bears remarking that well meaning interventions through litigation have the capacity to cause significant and unforeseeable harm. I know I am not alone, for instance, in thinking that challenging the Legal Service Contracting regimes may have won short term gains and sinuous judicial language to warm the cockles of some practitioner hearts but it can also only have helped convince policy makers that seeking to reduce legal aid costs through contracts and competition was, at best, fraught, if it as possible at all. Easier to cut and take the risks on some Article 6 applications.