Why I back the legal aid reforms – and more

by Carl Gardner on November 22, 2010

It’s taken me a week to respond to Ken Clarke’s statement last Monday about legal aid, so unsurprisingly, quite a few people have got there before me. Jonathan Freedland in the Guardian is opposed “root and branch”. John Bolch thinks the proposals on family law do not make good reading, and impliedly calls them “crass” and “Daily Mail-esque”. Henry Witcomb said they’ll be catastrophic for medical negligence victims. Nearly Legal uses mainly moderate language, saying the proposals will cause “very large problems” in housing law, but does also call some of the reforms “obvious idiocies” and “bonkers”. Indre at the Migrant and Refugee Communities Forum says the consultation proposes a “shocking level of cuts”. Afua Hirsch at the Guardian said last Monday was “the worst day ever for legal aid”. She also provided a helpfully annotated version of the consultation paper; you just get the plain thing from me.

Legal Aid Reform Consultation

Last Monday was certainly a bad day if you look at law simply through the lens of legal aid. I’ve not worked as a legal aid lawyer apart from a short career at the criminal bar, so I claim no expertise in the workings of legal aid, and don’t look at it through that lens. For some, that will disqualify me instantly from comment. But I’m prepared to support these proposals, at least broadly. In fact in some ways, I’d go further. I’d better explain.

First, you have to remember the structural deficit. To be political for a moment, I would not take such a quick and drastic approach to cutting it as the government is doing. I’d prefer the Alistair Darling, Alan Johnson or the more radicallly Keynsian Balls/Cooper approach. So if I were Lord Chancellor, I wouldn’t be cutting as hard or as quickly as this. But that argument was lost in May, and in any case it’s not good enough to oppose cuts in their entirety as though none have to be made in spending across the board – even Ed Balls would cut, eventually – or as though legal aid is a special case, to be protected even as housing benefit is cut and student tuition fees rise. Nor does anyone who voted for either coalition party, or who failed to vote against them, have any right to complain at all. If you agreed with Nick, then you actively chose to make the “savage cuts” he spoke of long before the general election. So opposition to these cuts is only serious if it explains not just why cuts are wrong, but what or how else the government should cut instead.

If you have to cut, then you should do so by applying some sort of principles – not just trimming where you think you can get away with it, but looking fundamentally at what’s most most important in legal aid, and what other important things are not quite so vital. I think the government has done that. No, I’m not happy either that most children cases will be ineligible for legal aid, or that social welfare legal aid is going, to take two examples. But I do think these are less crucial than criminal legal aid, domestic violence, possession or asylum cases. If you disagree, which cases do you say should be cut instead?

But there’s a deeper reason not to trot out the standard lawyer’s shtick of arguing for the status quo. We all want access to justice, and equality before the law. But legal aid has failed to deliver either for many years. Providing real access to justice and real equality requires not so much subsidising the cost of law as radically reducing it and to some extent redistributing it.

Law never had its Nye Bevan. What we chose in the late forties, in accordance with the Law society’s preference, was not to effectively nationalise law, radically reform it or set up a National Legal Service – something I’ve thought in the past we should have, and still think worth considering. We chose to provide public funding on top of essentially the legal system we inherited from the Victorians, modernised in certain respects. Perhaps there wasn’t enough gold with which to stuff solicitors’ mouths as well as doctors’ – I don’t know. But that was what we got. Inside legal aid, you might be able to afford law, since you had protection from paying your opponent’s costs. Outside legal aid, you were in the legal equivalent of Harley Street. So long as most people could feel confident they’d get legal aid in most cases, that would be fine. But they don’t, and we could never afford that, at least not in an admirably post-deferential, argumentative society. One reason why the public will back these reforms is that most people don’t think they’d get legal aid – which they therefore see as purely a cost on them for the benefit of others. For most people law, unlike medicine, is as inaccessible now as it was in 1940, and these cuts will make no difference. That alone should tell us the model we’ve been pursuing so far is wrong. Justice at present is accessible to the rich and sometimes to some of the least well off; but it’s far from being accessible to everyone regardless of means, in the way the NHS is.

Various attempts to cut away at the traditional model of law – the invention of tribunals, for instance – have failed, as our ingrained conservatism has told us these places should be lawyerised in spite of the original intention behind them. The current need to cut spending forces us to try again to make law affordable, so that there’s access to justice even outside legal aid. The government seems to me to be making some steps in that direction – by continuing to fund mediation in family law, for instance, and, as the proposals seem to imply, making that the focus of family disputes. If that works, it would reduce the cost of law within what will still be publicly funded. And I’m attracted by the redistributive idea mentioned in paragraph 4.161 of the consultation, under which a rich husband (for instance) could be made to pay the cost of his poorer wife’s representation up front, instead of her being publicly funded.

When it comes to reducing the cost of law, the legal aid proposals need to be seen together with the government’s parallel proposals for reform of civil litigation funding and costs. Here, the government is proposing replacing the traditional “costs follow the event” system, under which the loser pays the winner’s legal costs, with something called “qualified one-way costs shifting”, which basically means individual claimants should not have to pay defendants’ costs, unless they’re themselves rich or being unreasonable. The government is talking about bringing this in in personal injury and some other cases, like libel. I’d like to see it brought in in all cases. The main barrier preventing ordinary people from suing powerful firms is the fear that their wealthy opponents can run up and threaten them with the massive costs of law firms and barristers. This has to be stopped, and making it the general rule that litigants bear their own costs will help. It should bring down the cost of law, too.

But what about equality? I’d achieve that not by subsidising the poor to spend like the rich – but by limiting what the rich can spend. What I’m mainly thinking of is reforming procedures so that it makes little sense to spend vast sums on lawyers. But I also think it may be right for courts to be able to limit spending on legal advice in advance, so that in effect firms can only instruct more lawyers than their unfunded individual opponents with permission of the court.

A perfect opportunity to build a prototype for this sort of law will be whatever the government comes up with to replace the current libel system. That should emphatically not be something like current libel law, rebalanced a bit. Libel law should be radically simplified and enforced by a fast, damages-free system in which each side bears its own costs whatever happens, in which the only remedies available should be injunctions (including a flexible “correction and apology” order) so that no cash at all is at stake, in which parties represent themselves unless given permission to be legally represented, and in which (apart from in prior restraint cases) initial rulings are made by a tribunal on paper without a hearing. I know this will sound like a shocking sort of EasyJustice to some readers. But what sort of justice does the current Rolls-Royce libel system deliver?

I also want more direct redistribution of legal funding. The legal aid reform consultation suggests a levy on solicitors’ client accounts, for instance, in order to fund legal aid. Good. Again, I’d go further, and impose some sort of additional tax on the money rich individuals and firms spend on commercial law firms, and use that money to fund legal aid.

I’m prepared to back the reforms, not because I don’t care about justice – but because I do. I wouldn’t cut as deep as this – but those who voted for this coalition, including many legal aid lawyers, overruled me on that in May. If I could honestly say that the coalition is cutting legal aid in areas so important that they should take priority over housing benefit, I would. I don’t think I can. But in any event, those of us who want universal access to justice and equality before the law must refocus ourselves, Crosland-style, on achieving those vital ends rather than on defending tooth-and-nail the inadequate and inefficient means we’ve used to pursue them since 1949.

If the coalition allows legal business to carry on as usual while cutting legal aid, I agree, last Monday will have been a bad day. But if this signals the start of major reforms to move us from an expensive, partly subsidised legal system to one that is cheap, genuinely accessible to anyone regardless of means, and funded disproportionately by its rich users – then last Monday will have been a bad day for legal aid, and a good one for law.

{ 26 comments… read them below or add one }

1 Richard Moorhead November 22, 2010 at 15:17

Interesting post Carl. At the risk of coming across as a spammer this might be of interest:

http://lawyerwatch.wordpress.com/2010/11/17/legal-aid-cuts-%E2%80%93-some-early-thoughts/

An idea which I think has merit is to make all bulk issuers of court process pay for court-based debt advice. This service woul dbe a need generated directly by their activity so would be proportionate and internalise the cost of debt advice.

2 Carl Gardner November 22, 2010 at 15:39

Thanks, Richard – you’ve also written in depth about these issues here of course:

http://lawyerwatch.wordpress.com/2010/10/14/legal-aid-%E2%80%93-system-failure-or-broken-law/

This is really interesting stuff – thanks, and I agree with you both on simplification and on redistribution. I’m glad I’m not alone in my instinctive reaction to all this – and that you’ve developed this thinking further than I have.

3 NL November 22, 2010 at 18:23

Carl. I’m not a stick in the mud defender of the status quo by any means. I’ve pointed to the plight of those over the legal aid threshold for years (and now, of course, there will be many more of them). If I genuinely thought this was part of a considered process to rectify the serious problems of access to justice in the current system, my objections would be, at the least, more muted. But it isn’t.

One way costs shifting has its uses. Glad to see it for Judicial Review for example, but doesn’t address the imbalance that you think it does. All it means in PI is that the Defendants don’t have to stump up for the claimant’s ATE insurance premium. And, to lower the enthusiasm of solicitors for taking on such cases, the CFA success fee is removed. In so far as this has any direct effect, at least in PI, it is arguably to encourage Defendants to draw out the case.

The rest of your proposals – a limit on costs across the board, for example – are, if you will forgive me, pie in the sky. No indication that they are going to happen in the Jackson consultation. If anything the reverse.

And then the big gaping hole in your argument is that you don’t address a simplification of law at the same time. This is why tribunals became infested with lawyers or caseworkers. For example, a first tier tribunal welfare benefit appeal is rarely purely about an issue of fact that the appellant could reasonably address themselves (putting aside all issues of capacity and capability for a moment). Instead they are usually about interpretation of the interlocked subsets of various regulations or worse. Would one expect an unemployed A8 national whose kids were in school and had been refused benefit to know of and cite Tiensia v UK? But this is a situation that crops up pretty often.

So, while the idea of a reformed system that enabled access to justice (or at least mediation!!) for the many is an idea I would support, this is not what is happening. With the result that the lack of access that has long been the case for those on the average wage (or indeed below average wage) is now to be ensured for the poor as well. Equalisation of a sort, I suppose.

4 NL November 22, 2010 at 18:31

And I must point out that we’ve got both the legal aid cuts and the housing benefit cuts. You appear to be under the impression that it was one or the other towards the end.

Also, I didn’t vote for either of this lot, so can complain 😉

5 Julian Summerhayes November 22, 2010 at 18:56

Carl

As a lawyer who has plied my trade in reliance upon Legal Aid and private/(large scale) commercial litigation work, I understand and appreciate the problems that these changes bring about.

One course of action that could have been explored is to raise the taxable burden and not change the classes or categories of claimants and defendants that would be eligible. Would that be a vote winner, though? I doubt it.

Next there could be the option of looking at a public law service which would correlate more closely with your NHS model.

After that there would need to be greater means testing, eligibility criteria, costs capping etc etc. But the problem for me is that the system, very often, has not been set up for the putative claimant etc but rather for the lawyers. Of course most cases will be driven towards fixed fees etc and that will help but why isn’t there, perhaps, some sort of quota system, absent a publically funded system, where depending on the size of the firm they would be obliged to take on a certain amount of this work but would have to accept that the rates would be severely capped. No doubt there would be questions asked about the quality of the service but perhaps this is a way of redistributing the burden.

What your post highlights, and with which I concur, is that the changes are not radical enough and, yet again, much like the eventual enactment of the Woolf reforms, we will probably end up with the worst of all worlds where there is a patchy service with some firms doing very well out of the reforms and others going out of business.

Julian

6 Carl Gardner November 22, 2010 at 19:30

All good points, NL. I agree with you about legal simplification – especially in areas like welfare benefits.

I think cost shifting may be more important than you suggest. First, you’re only considering PI cases and the specific context of conditional fee arrangements. You may well be right that in this content the benefits would be limited and that other government proposals could dilute them even more. But more broadly, I think if people felt confident they’d be safe from costs – in other words, that they could control how much or how little they spent on law – you’d see more claims against companies, and more claims by companies being defended rather than settled by bullied defendants. There’d be more access to justice, in other words.

As for cost limits being pie in the sky – why? It might be in the sense that the government doesn’t intend to bring anything like it in. Okay. But that doesn’t mean it’s impractical, impossible or wrong. It’s no more pie in the sky – in fact, it’s less so – than simply arguing for no legal aid cuts.

You’re obviously right about it not being either legal aids cuts or housing benefit cuts. It’s both. I’m not for a moment trying to imply housing benefit can be preserved if legal aid is cut. But equally, legal aid can’t be “defended” in isolation. There really is, unavoidably, a trade-off, because every penny spent on legal aid is necessarily a penny less spent on something else. So what else is the ” something else”? If you oppose either cut, or both, what or how else would you cut instead? As I said in my post (and as David Cameron keeps reminding the public, and as I think Ed Miliband realises very well), people really have to be able to answer this if their opposition to the coalition’s cuts is serious.

I don’t think it’s credible to say “I wouldn’t cut legal aid at all”. Do you? Unless you do, then you, like me, accept at least some of these proposals, and need to think about how we create access to justice and equality in the real world – not against the counterfactual background of a legal aid expansion or even preservation.

What about cost and funding redistribution? Isn’t that more imaginative and sustainable and even actually fairer than expecting the ordinary taxpayer to fund everything legal aid covers now?

7 Carl Gardner November 22, 2010 at 19:42

Thanks, Julian.

The point I want to make about cost-capping is this. I understand why costs have to be contained when the taxpayer is footing the bill. But why don’t we contain them across the board, with fixed fees for all lawyers regardless of who’s paying, and (legal) constraints imposed on GlaxoSmithKline’s, Roman Abramovich’s and TSol’s ability to instruct lawyers that reflect the (financial) constraints on the average person? That way, everyone’s access to law would be “rationed” equally, not just the average or poor person’s.

I want to turn this on its head and relieve the burden on publicly funded law by making privately funded law a much more financially austere business.

8 Carl Gardner November 22, 2010 at 19:46

Another thing occurs to me: a cost limit could work by being mandatory and absolute (i.e. you may not instruct counsel, or you may not pay more than £x on legal services in connection with this case).

Or it could work in a more nuanced way. For instance, for every £ over the limit you choose to spend, you must spend the same amount on legal representation for your opponent. Or into the legal aid fund.

9 Julian Summerhayes November 22, 2010 at 21:05

Carl
I suspect that if the current cost capping regime was beefed up that a lot of your concerns could be addressed. I wonder if in years to come we will see this as yet another wasted opportunity and rather than liberating the legal profession it will only go to reinforce the them and us paradigm.

Julian

10 Richard Moorhead November 22, 2010 at 21:30

Changes in cost rules have some impact on willingness to litigate (small claims courts are the obvious example) but there are other things that need thinking about. New Zealand has a small claims procedure where I believe the judges are not originally lawyers and where lawyers are excluded appeals on point of law are prohibited. If that’s right these become, partly, courts without law. Overall, Ombudsmen ‘work round’ legal representatives to overcome the power imbalances created by representation.

The Wright and Elinghaus stuff Carl links to above is fascinating: it suggests less comlex, codified law can be as effective or moer effective than complex, common law based systems. That is a simpler law might be cheaper, quicker, fairer and moer predictable. If they are right, simplification is a powerful idea which could drive prfound change in legal systems: if only judges and politicians would be willing to give up on the power to legislate and distinguish law to the extent that they do.

11 simply wondered November 22, 2010 at 23:06

1 ‘So opposition to these cuts is only serious if it explains not just why cuts are wrong, but what or how else the government should cut instead. ‘

okay – it’s wrong for one reason because people will be made homeless in error and will have no recourse to the legal system that should be there to protect them. bad for them; bad for society. there are multitude other issues but that is a good start for me.

which gets me to ‘i wouldn’t cut legal aid at all’. the vast deficit about to swallow us up is a chimera. proof of this simple fact is that the cuts will cost not save money. in each case a headline-grabbing ‘cut’ is announced and then the figures show it is different from what we thought. in most cases any saving will not be seen for some years – is that really a sign of an imminent catastrophic event?
in many cases they will cost us money – see how much the proposed re-organisation of the nhs will cost. what will the long term impact of the cut in the budget supporting pe in schools do to the health budget in coming years? do they care? they are driven by a thirst for revenge as surely as thatcher pursued the miners for having the temerity to be members of the working class who had brought down the previous tory administration. think of dave and the hra.

the govt should NOT cut – cuts are a purely ideological response that aim for positive pr from sections of the electorate a party deems key. they should work out what we actually need (admittedly that may [will] be less provision than we have in certain areas) and then find a sensible way to pay for it. (what one might, for want of a better term call ‘governing’.) in this case they could levy a small percentage of gross profits of all bodies working in the legal profession.

2 what nl said at 4.

3 we are quite bright enough not to buy into this chicken licken school of government.

4 that’s it.

12 NL November 22, 2010 at 23:29

” more claims by companies being defended rather than settled by bullied defendants. There’d be more access to justice, in other words”

This is what I mean about pie in the sky. There is nothing at all in the Jackson consultation about one way cost shifting for defendants. It is premised upon individual claimant v insurers or v public body and wholly claimant based. What you are proposing is effectively costs shifting based upon means. Nice idea but quite simply not a part of what is going to happen.

I don’t buy the zero sum argument either. There is clearly a large argument to be had in some form or another about the extent of the cuts. But even accepting the zero sum, there is obviously an argument to be had about priorities and shamefully it is not one that is being made. HB v legal aid is both reductive and distorts that argument, because yes it is an argument that extends to tax too. The City bonus fund for this year is projected to be over 4.5 times the entire legal aid budget, or roughly the same as the projected HB savings, for example.

But I think perhaps the point thoroughly overlooked by you, other commenters and previously not mentioned by me is that of viability. Put it this way – in my area there are five significant civil legal aid providers (not including the advice centres, who will all without exception be completely screwed by the changes). Of those five, maybe two have a current business structure that can survive these changes. But they will not be taking on the additional matters left by the others because it will not be economic to do so. Thus the very real prospect is that legal aid will perish not because it has been wholly cut, but quite simply because it is no longer viable to do as a practice (private or NFP). What will be left will be poorly trained, unsupervised ‘advice workers’. This may sound melodramatic, but I am not given to hysteria. It is a real prospect.

Cost and funding redistribution – OK, but negligible in the scheme of things. Look at the amount the proposed scoop off of interest on client accounts would make – peanuts for the budget as a whole. Ditto any ‘contribution’ from damages for legally aided claimants (not least because there would be virtually no legally aided claimants left).

Quite how this measures up to any idea of equalisation of access to justice, I’m not sure.

13 simply wondered November 23, 2010 at 10:02

‘Quite how this measures up to any idea of equalisation of access to justice, I’m not sure.’

it will mean the poor and least able to defend themselves will have absolutely equal access to justice – bugger all. can’t get more equal than that.

they were talking on ‘today’ about the church stepping in to provide social services as they did in the C19th. dog help us. maybe god could operate a legal drop-in.

14 Carl Gardner November 23, 2010 at 15:06

NL – I know the government’s not proposing “bear your own costs” as the general rule, which is essentially what I’m suggesting. I know they’re not proposing shifting costs from poor defendants to rich claimants. But I am saying those might well be good ideas. I don’t see what’s “pie in the sky” about them, any more than your ideas – which are also not government policy.

What I think is pie in the sky is to stick our fingers in our ears and pretend no cuts can be made. Simply, you’re clearly doing that. I think the problem with your approach is that because we’re not facing immediate fiscal catastrophe (which we’re not, I agree) you think this means there’s no fiscal problem at all. But there is, even on Ed Balls’s approach: the deficit needs to be reduced over time, and turned into surplus through a mixture of growth, tax rises and, yes, cuts. “No cuts” is not a serious approach.

NL, your stance is more nuanced obviously, but to some extent I think you’re still in denial about cuts. Yes, I agree tax rises for the rich and for the rest of us should take more of the strain. I would confiscate bonuses about a certain level, not all that high. Yes, I also agree there is a real argument about priorities, and about timing and depth, which I’ve already mentioned. But after that point I think you’re preferring to remain silent, but I think you should go on to answer the question I implicitly put before. If it’s about priorities – about which of the cuts the government is making they should not make – then which is your priority? Legal aid, or HB? Legal aid, or keeping student fees down, or child benefit for the middle class? Or winter fuel payments for pensioners? Or the schools budget? Or police?

Unless you take Simply’s “no cuts” approach, in the end you have to answer this question, and justify all legal aid you want to continue spending measured against its social opportunity cost, not just compared to the social cost of legal aid cuts.

And take Simply’s example:

people will be made homeless in error and will have no recourse to the legal system that should be there to protect them. bad for them; bad for society

I agree, this is bad. Most public spending cuts are bad, and most affect the poor much more than they do the rich. But some people will be made homeless not because of a legal error, but because of something the law can’t change. Some people will be made homeless by error, and the courts will fail to correct this anyway. A few may manage to have the error corrected even without a lawyer’s help (because Simply’s wrong: people will not simply have “no recourse”). A few people will be made homeless in error, and public funding for a lawyer is the thing that will make the difference that keeps them in their home. What emotional reliance on this example implies, though, seems to me to be that ensuring eviction cases get public legal funding is more important than leaving more housing benefit money available for people (i.e. not cutting HB quite as much as you’d need to to maintain legal aid), or more non-legal support for the homeless whether or not the legal system can help them. If you’re prepared to say it is more important, then I accept you’re making an argument about priorities. If not, then it’s just an emotional protest against the consequences of the cuts, which we’d all sympathise with.

Anyway, isn’t the government prioritising cases where the home is at risk? So how good an example is it? I’m relieved and pleased that’s being kept. Losing the other stuff isn’t what I’d like in an ideal fiscal world, either, but how is the decision to keep legal aid in those cases rather than, say, repairs, an example of the government getting its priorities wrong?

15 NL November 23, 2010 at 17:47

Carl, your proposals have the merit of being considered, reasonable and practical. They are pie in the sky because they are not under consideration by the current lot and there is no indication whatsoever that they propose to consider them in the future.

So, absent the wholescale and well overdue reforms you advocate, your argument that the slash and burn of legal aid is a reasonable step on the road of greater reform on the principle of access to justice rather falls down.

You describe clinging to the status quo of legal aid as unrealistic, and I would agree to some extent. But equally supporting the changes on the basis of a wished for reasonable reform that simply isn’t on the cards can hardly be considered any less unrealistic. I think your attempt to play the realist card against the hopeless and unthinking defenders falters there. You try to give the cuts a broader principle or at least justification. There isn’t one.

16 simply wondered November 24, 2010 at 11:35

carl, i’m afraid i’m calling strawman on you. (in a friendly and respectful way, because i know you always fight fair).

okay, here goes…

you mis-characterise my argument as being ‘no cuts at all’.

not so. i do not deny we can and should seek to make cuts. as it happens i am more for tax but there is room for both. on this, i see we agree. and while i don’t know the difference between social cost and social opportunity cost, i agree the money we spend on legal aid must be justified by outcomes. i do not rule out reform of the process – having to work with it for just 18 months made it clear to me that was necessary. but reform is not proposed – it is reduction (to be polite) see nl above re slash and burn (although they probably won’t pay for matches).

‘“No cuts” is not a serious approach.’
no carl, it’s totally serious if you check what i am actually advocating. here’s why:
1) i propose no reduction in the size of the legal aid budget. it’s supposedly £38 each a year. we pay more a month for sky tv ffs. it is affordable and necessary.
2) i propose paying for it (and quite possibly more) by a direct levy on the legal profession.

what you asked for initially was a proposal for how we pay for it. that’s what i gave you. whether you like it or not is perhaps another matter. even if it isn’t something that will appear to be funded centrally, it is a choice we can and should make. it’s just like the choice to loan ireland £7billion. did we find that down the back of the sofa? no -it’s revenue we have and we made a choice on how to use it.

in any society we have choices about what we spend the money on and why. my choice is to spend a tiny proportion of our wealth on this service. my choice is not (for example) to embark on an expensive re-organisation of the nhs which will achieve nothing and cost some billions. such choices by the govt are indications that the cuts are ideologically rather than financially driven.

so i have to say whether i cut housing benefit or legal aid? sorry? why??? i presume you will next ask whether i have stopped beating my wife (not til i have finished flogging this dead horse).

i cut neither in principle (again hb could use a reform). i propose we work out what we want and then see how to pay for it. you are working from the (imho false) premise that one or the other must be cut and it’s a direct choice. that is their argument and if you fall for that you can’t win this debate. further, your insistence that we prioritise cuts is an invitation to a long and pointless list where we would get lost in the detail. detail which is meaningless without so many figures none of us will have. i accept the broad theory that some things will be prioritised.

next: one reason people need legal help with housing is that the non-legal help doesn’t work.

now the ‘people being made homeless in error’ section. again i feel you have mischaracterised what i am saying.
at the risk of being patronising (which i do not intend as i am well aware of your knowledge and experience) let me just set out how homelessness works. someone applies to a LA as homeless and they are almost inevitably told they do not qualify for housing. (birmingham went a step further and went to great lengths to avoid accepting applications. which is of course illegal.) now i don’t know why LAs do this but my nasty cynical mind suspects unofficial policy is to reject everyone and then use the fact that some can’t assert their rights as a filter because there is insufficient housing. (and insufficient labour in the housing departments, which will get worse as we know). that is one time when people need legal help. allegedly it will still be available in situations of homelessness. but in those situations people with nowhere to live are often found not to be homeless at all. i’m afraid the argument that there are other ways people can end up being homeless does not impress me. just because we can’t treat every problem does not mean we are absolved of responsibility for combatting those we can.
and could you explain what recourse people faced with homelessness will have if denied legal help? i’m not sure what you are referring to. i maintain that some (not all) people will indeed have NO help that will be effective in resolving their situation. (simply’s right!)

and you mention repairs – again essential to keep funding. social landlords will not respond even to situations that threaten the tenant’s life without a solicitor getting involved. (i’m afraid you will have to trust me on this but i promise you i have had cases like that.) now again (as with homelessness) the idea is that life-threatening cases will be able to get help. sadly, just as with homelessness, the issue is: who decides? the very fact there is a whole extra decision to be made (and of course there is no funding for the decision which will require a caseworker and often an expert witness, so how does it get made??) will result in greater cost for … well, who? as it isn’t funded elsewhere it will be the LA who will have to investigate with their workforce reduced by 20% who don’t currently have time to do this anyway.
and if they fail to do so?
they get JRd (and criticised by central government probably, who have created the whole alice in wonderland nonsense) and incur a whole array of legal bills that could have been avoided. and this is perhaps my most serious ground of opposition. like so many of the hard-talking daily-male-pleasing soundbites it will not save money but cost money. of course they think by shifting it to a different budget it doesn’t exist. i rather think if there are any fingers in ears they are the government’s.

so in summary:
sticking my fingers in my ears? no.
filtering out the lies that the true heirs to chicken licken are pushing about the likelihood of the sky falling? yes.

17 Carl Gardner November 24, 2010 at 16:17

NL:

Fair enough. Maybe I am ending up supporting cuts that aren’t intended to, and won’t, lead to reforms of the kind I’d like. But I think I’ll have to wait and see, and if you’re right attack them for not reforming more, rather than attacking their cuts now.

If I think the aim of access and equality regardless of means may well be better achieved by moving away from an approach focused on subsidising litigants, and instead reducing and redistributing legal costs; and if I accept that legal aid cuts are necessary as part of tackling the deficit, then I think it’s impossible for me to oppose legal aid cuts in the traditional way. I can’t honestly say they’re wrong in principle, but can only quibble about timing, extent and priorities. That means in truth I support them in broad terms, and think it must be right to say so.

I also find it difficult to pick any items out of the consultation and say that the coalition has got its priorities wrong.

18 Carl Gardner November 24, 2010 at 16:54

Simply,

You’re right – I do try to fight fair, and like you I’m trying to create light rather than heat. One of the things I like most about blogging actually is that debates in comments on this blog anyway are often of a higher standard, and more focused on issues rather than anger, than they are on telly and radio.

I still think your position is unreal, though. You say you agree some cuts should be made, and that priorities are needed; you even suggest legal aid should be reform, and imply some legal aid should be cut. The difference between you and me I think is that I’m prepared to draw the necessary logical consequence of that, and accept that a result, it would be inconsistent for me to oppose every particular cut that’s proposed. I think your reluctance to get into the detail, and to say that’s no way to win the debate, is a give-away.

You talk about HB v legal aid cuts, and object to my suggesting it’s a direct choice. As I’ve already said, I agree, it’s not. The government is cutting both, and if it were cutting legal aid less, it would cut HB or other things even more. It’s precisely this that should make us focus on what I’ve called the “social opportunity cost” of legal aid spending. Let me explain what I mean.

You I think focus entirely on the social cost of legal aid cuts. Those who are closer to legal aid clients and their problems than me will understand them better – I accept that, of course. Maybe I don’t appreciate them enough. But being close to one social reality may also make it more difficult to see others that are out of sight. For instance in discussing housing, you said one very crucial thing:

my nasty cynical mind suspects unofficial policy is to reject everyone and then use the fact that some can’t assert their rights as a filter because there is insufficient housing.

Doesn’t this reveal that housing itself is even more vital than housing legal aid? This is what I mean by “social opportunity cost”. You have to consider not only the human cost of legal aid cuts, but also the human cost of not spending legal aid money on something else, like housing.

In that context, your policy of maintaining the current legal aid budget come what may, even while cutting within it, makes no sense. What’s the magic in the current overall budget? Frankly, I think accepting legal aid should be reformed, while committing yourself to maintaining the overall legal aid budget rather than accepting that other spending priorities may be more important, is no more than an emotional gesture of personal commitment to legal aid.

The Irish loan is a loan.

On the question of “recourse”, I accept that for many people, not having a lawyer will make access to a court no good, or not much good. But lack of legal aid doesn’t strictly bar people from accessing the courts. That’s what I mean about people not having “no recourse”. I actually think it clouds our vision if we assume access to the courts is exactly the same thing as legal aid.

As for £38 a year, two points. First, and perhaps frivolously, I don’t and wouldn’t pay £38 a month for Sky TV. It’s too much. Second, if you really accept the overall point about the deficit and priorities, you’d agree with me that any claim in favour of maintaining one public spending budget in isolation, based on the argument that “I’m only asking for this much … ” is totally inadequate. Every item of government spending can be justified in that way. Unless you’re a complete deficit denier, you have to choose between these claims when they’re compared against each other. That’s my point, and what I think you’re refusing to do.

And finally, again, on the sky falling in, I agree it’s not going to. I also agree by the way that this government risks such pessimistic rhetoric on cuts and the deficit that it damages consumer and business confidence, delays business investment and chokes off recovery. But the fact that the sky’s not falling in doesn’t mean you can just relax and “pardy” indefinitely. That’s the mistake some climate change sceptics make.

19 NL November 24, 2010 at 20:37

So the position you have got yourself into is that any cut of legal costs is good in principle, so an entirely one sided cut of ‘subsidy’ of those costs to the very poorest is, per se, a good thing, even if wider reform is nothing more than a dim hope at present.

It is, I suppose, a principled position. It is not one I am capable of sharing, as I rather take the view that reform enabling general access to justice should precede, or at least run concurrently, with a reduction in funding for access to justice in the present system.

Never mind. I’m sure my clients will manage the wait of unspecified but clearly extended duration until wider reform re-enables their access to justice.

20 Ben November 25, 2010 at 12:26

As an aside (because having read through the above I think your hope for wholesale system reform is surprisingly close to being naive, so I am unsure how to respond) the reduction in Corporation Tax in the June Budget is estimated to be costing us at least £400m this year, rising to £2.7bn pa by 2014/15.

Now, remind me again why we have no choice other than to make these cuts?

21 Richard Moorhead November 25, 2010 at 12:52

I’ve been following this with interest. Terrific stuff from both sides but I want to sound an important warning note, which means I think we should pay more attention to Carl’s basic thrust which is one of political realism.

Of course it is right for the massive problems that the government will cause to the justice system because of these cuts should be highlighted. I do not criticise anyone for lamenting the cuts, pointing out their flaws. Trying to fight a rearguard (as will all other service providers with a particular interest which is not simply – even mainly- self-serving). I believe, for instance, that there is a real risk is that, in cutting social welfare law, problems will mushroom, become more expensive and be picked up by more demand-led budgets. The cuts to social welfare law may fail in their own terms. For this reason I would advocate a longer and harder look at the spend on crime and child care cases as heretical as that may seem to the normal hierarchy of rights which informs Carl’s (and the Government’s) analysis of priorities

But it is also right, I would say eseential, that anyone serious about access to justice stands aside from the short-term problem (eye-watering as it is) and look at the bigger picture. Let me put it this way, the arguments in this post are fighting a battle which has almost certainly been lost (matters of detail and Article 6 challenges aside). Whether I am right about that or not, the important thing is the battles that will come (or at least that is one of the important things). I say this for two reasons. One is, I do not believe that the Government across all of its deparments will successd in making all the cuts it says it will when it projects its cuts. There is some serious cutting but there is also some wishful thinking. Unless economic recovery looks like it will take take care of the remainder of the deficit we may well be back in two years time with more cuts on the agenda.

I understand the need to resist cuts, and the dangers in advancing cost-saving programmes of reform, but somehow, somewhere, there needs to be a space where genuine and thoughtful suggestions for reform which advance the public’s interest. The Law Society has been, frankly, hopeless at this: they have to fight for the interests of their members and end up taking a lowest common denominator approach as a result which has played into the Government’s hands. The point made above, about the need to bed in radical change before cuts are made is a reasonable one, at least in theory, but I am afraid that means thinking about the next battle not this one and it means thinking about it now.

22 Carl Gardner November 25, 2010 at 13:40

I think you’re going too far in describing the position I’m in, NL. I’ve not said legal aid cuts are “good in principle”, and I don’t think it follows from anything I’ve said. If I did think that, I’d say all criminal legal aid should be abolished. What I have said is that, given my feeling that cost reduction and redistribution may be the real key to access regardless of means, and given the deficit, I don’t think I can sensibly oppose them. I think it’s no accident that the Labour opposition has reached more or less the same conclusion just based on the need to tackle the deficit alone.

Ben: okay, call me naive. I’m not sure how that shows I’m wrong! I don’t say we have “no choice”. These are all political choices. We could decide to maintain the deficit indefinitely, or to increase it, or to eliminate it without making any public spending cuts, by increasing taxes steeply on every taxpayer, probably including NL’s clients. All those options could be called “naive”.

I infer you’re against the corporation tax cut – I am too. I’d reverse it. But you remind me of something: why is legal aid the number one social priority for spending the £400 million you say we’d get back that way?

23 Ben November 26, 2010 at 15:50

<>

Carl: it is clear to me from reading your blog for many years that you are far clever than I am, and I understand that I am highly unlikely to ‘win’ any kind of debate with you – however I am surprised that you would reduce what is being discussed to such a dispiriting zero-sum proposition.

Obviously there are many aspects of modern society that would benefit greatly from £400m of additional spending (care for the elderly, for example) – equally there are many billions of other items of arguably unnecessary government expenditure which could be used to fund that AND legal aid (to say nothing of the £35bn – £70bn of uncollected tax each year).

As proposers of the changes to legal aid, however, it is for the government (and you, in your support for them) to demonstrate why *this* particular cut is worth making, by showing that the harm caused by the cut will not be disproportionate to the benefit of making the cut – I don’t believe you have made this case (and the Government haven’t even tried in the Green Paper, simply hand-waving towards the CAB and independent advice sector, without any recognition that they cannot even meet existing demand, and in many cases will have to cut services as they themselves *are funded via Legal Aid*). Having supported several consortia of local charities through the debacle that was the last LSC commissioning round (for SWL contracts) I can tell you that most agencies would like nothing more than to be able to walk away from legal aid funding – the fact that charities and not-for-profits across the country have hung on despite the LSC’s incompetence shows how desperately needed the funding is to provide services *because the need is real and isn’t going away*.

The government’s position, and yours by extension, seems to be that this and the rest of the cuts must be made for fiscal reasons (a position disputed by just as many economists as support it) regardless of the damage it causes to individuals, as there is nothing in either these proposals or the Jackson report that aims to redress the power imbalance between public or private institutions and the individual citizens who have been damaged by the decisions of those institutions.

The bottom line is that by supporting this cut you are supporting the removal of legal help from the poorest of the poor, which will lead to destitution, ill-health and disasterous reductions in living standards among many thousands of already economically-marginalised clients who would otherwise have received help that would have stopped their ongoing suffering.

Is the current system perfect? Not by a million miles.
Will simply culling the current system improve access to justice for poor and vulnerable people? No, obviously not.

24 NL November 27, 2010 at 01:13

Carl – I said you had come to the position that ” any cut of legal costs is good in principle”. And so you have. I quote:

“Providing real access to justice and real equality requires not so much subsidising the cost of law as radically reducing it and to some extent redistributing it.”

Your stated inability to argue against legal aid cuts is, for you, a direct consequence of that.

But there is no great reform forthcoming. So the question to you is why, in the interim and pending some re-assessment of costs and process tout court, should the burden of the failure of the current system fall completely on the non-rich, and in particular on those in greatest need?

The ‘deficit reduction necessity’ argument is wholly separate from the cost/procedure/access to justice argument. You mix up the two, apparently in an attempt to make a virtue out of necessity. The supposed financial justification of the cuts has nothing whatsoever to do with your reason for supporting them.

I say it again. I don’t disagree with anything in your proposals for greater reform. But at least have the grace to admit that in actuality that has nothing at all to do with the legal aid cuts as proposed. To argue the contrary is, if you will forgive me, a position that only an academic or (ex) government lawyer could espouse.

Don’t worry, no-one will accuse you of intellectual or moral dishonesty if you say you want major reform on legal costs, but that in the meantime cutting legal aid is an unjust burden on the poorest.

For full disclosure, my firm has done the maths and we will be OK, although clearly there will be changes in the kind of cases we do and a reduction in the proportion of legal aid matters. So I am not arguing out of self -interest. Hell, I don’t *need* to do legal aid at all. I get at least double the fees on other matters. I and my department are just stupid enough to want to do legal aid, regardless. But believe me, there will be a lot of providers who won’t have the luxury of that decision. It will be a survival or not issue for them. But I’m sure you can justify it as being in the greater good when the deserts appear (and they will. I’m really not scaremongering.)

By the way, don’t expect the ‘national advice line to fill the gaps. The current level of advice on the CLS direct line varies from excellent to wholly negligent, but the biggest cluster/peak of the bell curve appears to be at the fairly crap to negligent end of the scale. This will not improve, quite the reverse.

25 ObiterJ November 29, 2010 at 19:02

An excellent post if I may say so. Not sure that we voted for a coalition but we got one anyway!!

You have gone far beyond the knee-jerk “this is all bad” reaction even if a lot of it is undesirable. Undoubtedly, there is a big opportunity in all of this for a more radical shake-up of how the courts and tribunals actually deliver “justice.” Very often it is the “Rolls Royce” solution and I agree that it is a system in which there is little “equality before the law.” Your call for reform of defamation actions is excellent. [No legal aid there of course even now].

I can’t see them setting up a “National Legal Service” – an idea which has attractions and would be worth examining in detail. They will draw the immediate parallel with the NHS and say -“we’re not going there.” “Far too costly” – “Too many layers of management” etc. In fact, they are getting rid of the supposedly “independent” LSC which seems to me to be a somewhat retrograde step.

However, there is a need to properly address those situations where:
a) legally aided party v non-legally aided party;
b) very rich party against person of limited means.
Here the scales can be very uneven indeed and I am far from sure that the proposed reforms even begin to get close to those issues. After all, the proposals retain the same legal aid structure.

26 Andy November 30, 2010 at 15:04

Many people far smarter than me have commented on this issue already, but there’s a couple of points I’d be interested to hear you response to.

Firstly, lets allow the cuts to predicated on the need to save money. Some of the cases in areas where cuts being made will be taken on by providers that can turn a profit from them. Much of the clinical negligence, debt (where there’s no risk to the home) and consumer work would fall into this category. Although whether this will still be the case in a post-Jackson world is dubious.

Welfare cases don’t fall into the above category. For a start the government won’t pay the tab if your appeal is allowed. So, given that it’s going to be almost impossible to fund welfare cases, it’s no great leap to conclude there will be considerably less provision of legal services here. Problems start to occur when you’re dealing with a DWP that is, frankly, pretty bad at processing benefits claims correctly. A DWP that’s frustrating the intent of Parliament. This becomes an even bigger problem when the benefits that people are legislatively entitled to are the only thing between the claimants and destitution. If you’re with me this far, its no great shake to conceive that benefits being denied to those legally entitled to them will most likely result in both serious social problems and crime which—more to the point—are seriously expensive to rectify later.

My concern is, that while access to justice may indeed be a trade-able element when facing a large budget deficit, certain parts of the cuts may produce more expensive issues down the line. Welfare is one. Housing is (potentially) another.

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