Legal Aid Reform: Let’s be Civil

The Government’s proposals for legal aid cuts have drawn a great deal of criticism, but the focus of nearly all of this has been on criminal defence work. It’s a failing I have been guilt of myself (I co-signed a letter to the Times which concentrated purely on the cuts to criminal legal aid).

The proposals include (I have taken these from the Law Society’s summary):

1. Reduce scope of prison law to cases that involve length of detention and adjudications that require representation to comply with Article 6
2. Residence test for civil legal aid restricting eligibility to those with at least 12 months’ lawful residence.
3. Legal aid payments for judicial reviews will only be made if the permission application is successful.
4. Civil cases to have at least 50 per cent change of success – ‘borderline’ cases no longer eligible.

There are a number of potentially serious results which could flow from such proposals. Rather than assume a Government that takes seriously legal obligations and the rights of unpopular individuals in positions of significant vulnerability, let me concentrate on some more pragmatic implications.

By taking matters out of scope, it may generate large numbers of exceptional funding applications (the safety valve procedure by which the MoJ hope the Legal Aid Agency can avoid Article 6 challenges to the lawfulness of denial of legal aid). When turned down some of these will be subject to judicial review. Any judicial receptiveness to such claims through, say, granting some of them may produce a cascade of further reviews and funding decisions. Item three will encourage firms to issue proceedings in any circumstances where they are able to get paid. There is the potential for this to create more cost than it cuts.
There are a number of response to 4. It rather depends on how well firms can identify which cases have prospects of success. I have seen no persuasive work on this. If the nature of the work is such that predictability is very difficult, then firms will be able to pick very few winners; they will cut caseloads dramatically to a small number of ‘dead-certs’ or give up altogether. This may kill off certain areas of work. There is a further concern that specialists in prison law cannot practice without criminal defence contracts. The forced merger/consortia approach of the PCT proposals spreads further. There is a good case for saying it is a wasteful process with uncertain outcomes; though it may also aid prison lawyers to better identify (and therefore increase somewhat) the identification of prison law cases that can be run. It is another way in which the reforms may drive up costs.
Another response is to seek inter partes costs orders in judicial reviews far more frequently than now. This would have two effects: increase the burden on courts; and, where successful, shift what was once legal aid expenditure onto other public bodies and departments.

Now in all honesty, I do not know how bad this is. These are just plausible ideas about potential problems. They make sense to me; but I do not know how serious the issues are in fact. I have read, rather quickly because it pained me so, the Government’s impact assessments. These are never very convincing documents; but these ones looked more superficial than normal. I was not at all convinced that the Government knows what it is doing. If costs rise and costs are spread to a wider range of departments, the MoJ may look incompetent to its sibling departments and the Treasury. It will be of little comfort to anyone: bad cuts, beget more cuts.

Public law work associated with immigration and prison law cases is not glamorous or popular, but it can be important in rule of law terms, and also deal with matters where human vulnerability is intolerably acute. Cases that deal with children, mental health problems, and the hospitalised as well as some of the State’s dirty washing (aberrant behaviour of troops abroad, behaviour of the security services) protect essential elements of humanity and democratic health. These changes may also cost us more because of a hasty intervention to save modest sums of very small parts of the legal aid budget.
There is a meeting at the LSE on Monday to discuss these issues. I hope practitioners and others come with good questions and even better answers as to what these proposals mean. There is a good deal of understandable, but overheated rhetoric, on other elements of legal aid and associated reform. The professions need to speak up beyond criminal law but do so in measured and forensic terms that speak to the Government’s concerns. Details of the event are here.

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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 Reform: Let’s be Civil

  1. David Wolfe says:

    Richard
    I agree with all that.

    Let me add two more examples of likely unintended consequences:
    1. Putting lawyers ‘at risk’ pre-permission will (in a world where judges apply the permission test in a notably inconsistent way) encourage cases to be brought much earlier than now (so that any concession by the defendant then triggers an entitlement to ‘inter partes’ costs) and in that way discouraging attempts to settle claims without the need for JR proceedings, potentially leading to more not fewer claims (certainly in some areas of JR work).
    2. Borderline does not mean 50:50. It has a very specific meaning:
    “borderline”, which means that the case is not “unclear” but that it is not possible, by reason of disputed law, fact or expert evidence, to—
    (i) decide that the chance of obtaining a successful outcome is 50% or more; or
    (ii) classify the prospects as poor [i.e. <50%]"
    So many perfectly good (and important) JR claims (particularly those in new areas of law) are actually ‘borderline’. The result of removing ‘borderline’ cases will be (I predict) a dramatic increase in appeals to the Independent Funding Adjudicators and the Special Controls Review Committee; and in judicial reviews (which are necessarily held in secret) of their decisions.

    And then two general concerns about the proposals:
    1. The proposed reduction in payment rates risks a dramatic inequality of arms between claimants and the many and varied defendant public authorities (which can decide who to instruct and what to pay them).
    2. Perhaps most fundamentally, these proposals are premised on a notion that judicial review is A BAD THING. Actually, judicial review – as a matter of practical reality not just a theoretical possibility – is vital to incentivising good public decision making well beyond the particular decisions which end up being challenged. The “Judge on Your Shoulder” (as described in the civil service training materials http://www.tsol.gov.uk/Publications/Scheme_Publications/judge.pdf) is a long-recognised and vital discipline to good decision-making by all public officials and bodies. That in turn surely contributes to (among other things) the wider economic wellbeing of the country (such as through encouraging international investment) which comes from operation of the rule of law. It is perhaps surprising that a Government which might be expected to be naturally concerned to ensure that the state behaves lawfully should be contemplating dramatically undermining all that; and to save relatively tiny amounts of money.

    David

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  3. En Blandino says:

    Permission to appeal or apply stage: There is significant injustice at this stage of the proceedings in which litigant in person are extremely prejudiced. Many judges no longer have time to read litigants submission. So these judges are increasingly refusing permission on grounds never pleaded by the litigant. Is it asking two much for judges to make reference to the grounds of appeal and provided cogent reasons while they believe those grounds by the litigants were not made out for permission to be allowed?

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