Treasury wolves in Access to Justice clothing
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18 October 2013
Lawyers are worried government legal reforms are really a Treasury Trojan Horse aimed at slashing legal aid costs, says Elizabeth Davidson.
REBEL Labour MP Austin Mitchell echoed the views of many in the profession when he claimed, on the eve of the Queen's Speech last week, that the Lord Chancellor, Lord Irvine's legal reforms had been "treasury-driven".
Mitchell told The Lawyer that he thought the Government's reforms were "reducing justice", reiterating the fears of many legal aid lawyers.
The Access to Justice Bill, announced in the Queen's Speech, turns the existing legal aid system on its head, in what is the most radical restructuring of the system in the history of the Legal Aid Board (LAB). In future, legal aid will be budget driven not demand led.
The bill abolishes the existing system, where public funds are guaranteed for anyone who can show eligibility for legal aid and prove they have a viable case.
In the future, legal aid will be dispensed according to pre-determined budgets. The bill tightens government control over legal aid spending by replacing the LAB with a Legal Services Commission (LSC), which will oversee two new services: the Community Legal Service (CLS) and the Criminal Defence Service (CDS).
Both of these services will operate using only those firms and agencies which have exclusive contracts with the LSC, to deliver legal services at a set cost.
Cynics claim this new tightly-controlled regime sets the scene for future government cuts, begging the question of how important access to justice really is to the Government.
Austin Mitchell's claim that Lord Irvine's reforming zeal has been motivated by cost cutting and not by a philanthropic desire to improve justice, adds to these suspicions.
Lord Irvine has consistently maintained he wants to control, not cut, spending on access to justice. But then he would say that, wouldn't he?
As one former minister told The Lawyer last week: "No government that I can remember has admitted to being driven by a need to make cuts."
He added: "There is no doubt the Treasury was behind these reforms... The Lord Chancellor has been in discussion with the Treasury since the May election about how to curb the legal aid budget."
A closer look at the Government's proposals reinforces these opinions, although further details are due to be published in a White Paper and a draft bill this week.
Richard Miller, chairman of the Legal Aid Practitioners Group, is concerned about the Lord Chancellor's Department (LCD) statement accompanying the bill, which states: "Contracting... would help ensure public funds are spent in a controlled way... The money would be targeted on the cases of highest priority."
Miller claims this gives "civil servants, not judges, the power to make value judgements about which cases receive funding". He says access to justice relies on how "highest priority" is defined.
Miller also questions the new "flexible funding assessment" for establishing legal aid eligibility which will be designed, according to the LCD, so that only "the most deserving cases" receive funding. Under the new test, which replaces the means test, the solicitor must prove his client can obtain funding through no other way and that a reasonable person, able to fund the case out of their own resources, would pursue it.
Miller says civil servants will have the discretion to determine who satisfies this test and there is a danger that unpopular candidates will not be deemed "deserving".
But Miller's main concern is that increased controls mean legal aid cuts will be easy to execute in future, since the LSC will simply be able to say "this is the budget and if there are any more cases then tough luck". Miller argues that the Government is laying the foundation for a system where it will have the option of cutting the budget with the minimum of fuss.
Legal aid will be removed from personal injury cases first. But the Association of Personal Injury Lawyers (Apil) has argued that the Government got its sums wrong when it decided to remove legal aid from personal injury law.
Apil president Ian Walker says his organisation's research shows the Government has spent an "insignificant" amount on legally aided personal injury cases.
For criminal law, the bill attempts to control the #733m cost of criminal legal aid - a 44 per cent rise since 1993.
The CDS will deliver most legal aid for criminal law through a system of exclusive contracting with private sector firms and individuals, for set amounts of work at a fixed price. Specialist advocates will handle crown court work, financed from the firm's contract budget.
Complex fraud and murder cases will be handled under separate contracts between the CDS and barristers or specialist advocates.
Bar Council chairman Heather Hallett QC warns: "As state control increases, lawyers fight shy of fearlessly asserting their client's case... and the justice system becomes a tool of the state."
Hallett says: "The evidence of the impact of public defender systems in the US is chilling. The justice system becomes geared to administrative convenience and cost cutting, and this leads to a culture of uncontested cases and plea bargaining, where criminals are treated leniently and the innocent are punished for fear of a more severe sentence."
Criminal Law Solicitors Association president Franklin Sinclair says: "The solicitor needs to do his job unfettered of his dependence on the state and we need substantial safeguards that his legal aid contract will not be affected, no matter how much of a pain in the neck he is to the system."
Sinclair says the proposals affect the client's right to choose a solicitor because, of the 10,000 firms currently doing criminal legal aid work, he estimates only 1,000 will be left by the turn of the century.
The full import of the bill cannot be gauged until further details are revealed next week, but civil and criminal experts have argued that it will make future cost-cutting exercises easier and that it will restrict access to justice immediately. Lord Irvine's bill clearly threatens access to justice, if not today then tomorrow.