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.
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.