A foreign approach to legal aid

John Malpas looks at the recent outrage in the press over foreigners receiving legal aid

EVEN for such a highly emotive topic as legal aid, things are getting rather out of hand at the moment.

Last Wednesday a front-page lead in The Guardian reported “outrage” at the fact that a fraud case taking place in the UK, but exclusively involving foreign nationals, was likely to cost “the British taxpayer” £10m in legal aid.

“Some legal experts are predicting the controversy may not only increase calls for foreigners to be barred from legal aid, but lead to the demise of the entire system,” said The Guardian.

Clearly the case does raise some important questions – not least the cost of litigation in complex cases and, given the fact that some of the legally-aided defendants were unsuccessful, the quality of the counsel's opinion which prompted the Legal Aid Board to grant them aid.

But is The Guardian really suggesting that all foreigners should be barred from receiving legal aid? If it is, it is a highly illiberal argument.

Of course, cases like the one reported in The Guardian are not uncommon. There were similar calls for an ending of the right for foreigners to receive legal aid when one of Iraqi president Saddam Hussein's former aides received £2m in aid. In that case, the recipient was also “apparently wealthy”. According to the Daily Express, he had servants, a dozen homes and a fleet of luxury cars.

It was one of the cases which prompted the Lord Chancellor's Department (LCD) to attempt a clampdown on the apparently wealthy receiving legal aid by creating a special investigation unit to check up on applicants' assets.

But in its consultation on the issue, the then conservative government came out firmly against denying foreigners the right to aid.

It argued that to introduce a nationality test would be “unreasonable and unjust”.

“Consider the case of a foreign national who comes to this country to work on a short-term contract and has an accident at work, or is involved in a road accident, or is the victim of medical negligence,” said the LCD's consultation paper.

“Would it really be right to deny that person effective access to justice solely on the grounds of nationality?”

The paper also pointed out that, like foreigners in the UK, Britons abroad are almost invariably entitled to the state aid that operates in that country if they qualify.

However, a spokeswoman at the LCD confirmed last week that the granting of legal aid to foreigners was one of the issues being considered by the review of legal aid and the civil justice system being carried out by BZW chairman Sir Peter Middleton. He is due to report back to the Lord Chancellor, Lord Irvine of Lairg QC, at the end of September.

Russell Wallman, director of policy at the Law Society, said one possible way forward would be for the government to deny legal aid to foreign litigants in cases – like the one highlighted by The Guardian – where there appeared to be no domestic UK connection.

For Andy Wilson, chair of the Legal Aid Practitioners Group, the significance of the case is the fact that it illustrates what a drain complex fraud cases can be on the legal aid budget. He said: “A small proportion of cases are eating up a huge proportion of the funds.”

It was, of course, absurd for The Guardian to suggest that one case could lead to the demise of the current legal aid system. But the tone of the article was a typical example of a steady stream of media attacks on the system, which have been fuelled by a succession of government leaks.

The message of the “Government sources” would appear to be that the forthcoming reform of legal aid will be much more radical than everyone originally thought.

Wallman, for one, however, is not getting over-excited. He predicts a step by step rather than a big bang approach to reform with lots of pilots and consultation.

Last week, Lord Irvine told senior judges he intended to take the key decisions on legal aid reform in October.

In the meantime, everyone should take a deep breath, and try and keep the legal aid issue in perspective.