Legal Aid: one cut too far
One of the defining characteristics of the English legal system is its provision of access to justice. This fundamental, ingrained assurance is revered across the democratic world and is a source of inspiration for many countries within the Commonwealth, especially in Africa.
However, access to justice is today under threat as a result of the decision by the Legal Services Commission (LSC) to reduce the number of solicitor firms offering legal aid in England and Wales as part of the Government’s comprehensive spending review.
The justice system faired badly under Chancellor George Osborne’s spending review late last year, incurring cuts of around 30 per cent. Of that figure, £350 million will be slashed from the legal aid budget, prompting fears among legal practitioners in England and Wales that the most vulnerable people in society will now be at risk of being denied access to courts.
The Law Society has expressed concern over the legal aid cuts, going so far as to commence judicial review proceedings against the LSC over its decision. Speaking to Government Gazette, Des Hudson, the chief executive of the Law Society, conveyed feelings of unease about the possible implications for justice as a consequence of the legal aid cuts and how these will affect the legal profession as a whole.
The scale of the changes to legal aid announced by the LSC came as a “very big surprise” to both the Law Society and general practitioners up and down the country, Des said.
As is usually the case when a Government takes a decision to significantly cut public funding, the most vulnerable are hit the hardest. According to Des, the one group of people who will be most affected by the legal aid cuts are those in relation to the provision of family law. He commented that: “If you are a child that is subjected to care proceedings, or a parent or grandparent whose child is subject to care proceedings, you are going to be very much affected. If you’re a wife and mother who’s just been assaulted and has moved to a refuge with three children and you’re looking for a solicitor to get court proceedings for domestic abuse, you will be very much affected.”
But how will this affect take place? Des cited two ways: firstly, between 46-50 per cent of legal firms will have to stop taking on legal aid cases and so there could be the scenario in which mid-case your lawyer has to change; and secondly, there is a question mark as to whether the allocation by the LSC of contracts for legal aid across 134 listed areas in England and Wales is correct.
Expanding on the latter point, Des argued that if the allocation for legal aid across the 134 designated areas is not correct, then the consequences could be “quite severe”. He said: “A mother and wife who has been assaulted, has had to leave home, is living in council accommodation in East Cornwall and has to travel 2-3 hours on a bus, with her children, to see a solicitor, is the sort of scenario we are concerned about. The Law Society has identified about half a dozen areas-East Cornwall, Cardiff, Northumberland, Lincolnshire, Hull and East Midlands-where we can point to specific examples which suggest that the allocation is imperfect.
“We are not saying this has been done maliciously or improperly by the LSC. But if 6 are wrong, then what about the other 128? We believe there is sufficient doubt that there are problems with the other areas. Therefore, we have asked the LSC to urgently undertake and publish a review of their allocation because at the moment what seems to be in question is whether the LSC is discharging its obligation to ensure access to justice, which is one of its statutory roles. Currently, we do not see a mechanism by which they will demonstrate that they are complying with that statutory obligation.”
Should the Law Society’s concerns materialise, the potential consequences for justice, according to Des, are “very serious indeed” and go to the heart of what sort of society we want to live in. “At risk is something we take for granted; namely that, if we suffer an injustice, we will have access to the courts. What could soon develop in society is the scenario in which if you are weak, if you are poor, if you find yourself in trouble, then the quality or access to justice that you may have could be dramatically different to that which the powerful and wealthy have at their disposal. That is the central issue of our argument to the LSC to conduct a review of its allocation.”
In an attempt to offer the public more outlets offering legal advice and thereby create more competition in the legal market, the Government is set to introduce Alternative Business Structures (ABSs) perhaps as early as this October. For the first time in English legal history, lawyers will no longer have sole ownership of legal services. Anyone considered to be “fit or proper” will be permitted to offer legal advice, including supermarkets and insurance companies.
Just how effective ABSs will be is difficult to say, Des commented, because they are “very untried”. However, he outlined three possible outcomes stemming from their introduction: firstly, they will be a “damp squib”; secondly, they will be a “radical force” which will introduce more competition; or thirdly, they will thrust the country into an experiment which could damage the legal profession “irrevocably” and deliver “no benefit” at all.
From a business perspective, Des noted that England and Wales will be put into a very exposed position as a result of ABSs because no other legal jurisdiction in the world has a comparable arrangement: “I expect no firm of solicitors involved in international law to touch ABSs with a barge pole because ABSs in many foreign jurisdictions are seen as being utterly wrong.”
The affect of ABSs on the family solicitor and on legal training will be “pronounced”, warned Des. “In five to ten years time, there will be fewer legal firms (those that we have will be bigger) while clients will have to travel further afield for face-to-face contact with their solicitors.
“As for training, things will become radically very different. When I was training as a solicitor, a lot of my work I did as an article clerk was offshore to Bangalore. I suspect people today will have to spend time as a paralegal or an executive before they get the opportunity to become a solicitor. Furthermore, given the current situation regarding student debt, I fear that we may have a far more exclusive group of people becoming solicitors, which is contrary to how the profession should actually be a meritocracy, where if you work hard, you get on.”
The focus of the interview then shifted to the government’s intention to appoint an uber-regulator to sit on top of the Law Society and the Bar Council. Des remarked worryingly on how such an appointment could damage the reputation of the English legal system abroad: “The number of people in Africa who have said to me that they look to the English model as a bulwark for protecting the rule of law but are now very concerned about what is happening in England is significant.”
The twenty-first century has brought a raft of challenges to the legal profession, some of which will fundamentally change how solicitor and barrister work together. While acknowledging that the legal profession has been able to survive and thrive for hundreds of years, noting that there is no reason as to why it cannot continue to do so today, Des cited three issues which he believes warrants government attention: the trend for off shoring; the restrictions on immigration; and the way in which the UK uniquely applies money laundering legislation. He warned that: “All these conspire to make England and Wales, particularly London, a less attractive place to run a law firm from. At the moment, of the six largest law firms in the world, four are based in London. However, this could gradually change if the government does not afford serious attention to the issues threatening that status quo.”
Housing magistrates’ courts in shopping centres is currently being mooted by the Government. Put to Des was the question of how this would impact solicitors and justice. “There needs to be some degree of remoteness, some degree of authority when it comes to a court. Defendants and those testifying cannot be made to feel too comfortable in a court. The process of testing the truth requires authority.
Courts need to be different. While I’m not dismissing the idea of putting a magistrates’ court in, say, the Manchester Arndale as bad, I do believe that we need to think carefully about this.”
Ensuring access to justice is an absolute necessity for those in our society who do not have the financial means themselves for going to court. However, access to justice is also a fundamental pillar of the English legal system and serves to enhance the UK’s standing in the international arena. While the argument for the need to reduce government spending is irrefutable, this must be balanced with the need to ensure that justice is not compromised.
Justice, historically a guiding principle of the UK, is at stake today along with the reputation of the country abroad as a beacon of civilisation. The Government must take note.
(Additional material by Darryl Howe).