Changing the story on legal aid

by Joseph Markus

The Government has been quietly changing its argument on why cuts to legal aid are justified.

Jonathan Djanogly – Parliamentary Under-Secretary of State at the MoJ

We now have the concession, by justice minister Jonathan Djanogly, that they are uncertain about the precise costs and benefits of legal aid reforms. The intention of the Legal Aid, Sentencing and Punishment of Offenders Bill, slowly wending its way through the Committee stage in the House of Lords, is to save the Government £450 million from the legal aid budget.

Gradually, as in relation to the health bill, and hopefully in relation to welfare reforms, opposition is chipping away at some of the more worrying changes.

For instance, the Government are not intending to keep a clause introducing means testing in police stations for suspects before they can see a publicly-funded lawyer.

This latest admission, in comments to a Westminster Legal Policy Forum meeting, suggests that while there is uncertainty over the costs and benefits of the impact of the reforms, that is now no longer the primary or leading argument. Now it’s no longer necessarily about saving money, but about saving the British people from confrontational court cases and pushing mediation as an alternative method of dispute resolution.

While this is a fine sentiment, it’s difficult to see how it supports, in any sense, the idea of restricting legal aid through cutting large areas from its scope—amongst them social welfare law, employment law, and other areas in which the main beneficiaries are those who are on the wrong side of unequal power differentials (the citizen or asylum seeker against the state, and the employee against the employer).

If this was the rationale behind the Bill it would have been spelled out at the start of this long and agonising process. Second, this aim could have been achieved in a much simpler way—which turns out already to often be a requirement of LSC funding—that alternative methods of dispute settlement are deployed where appropriate.

That really is the key: mediation certainly will not be appropriate in all cases. Sometimes the formality of a court or tribunal setting is a necessity. In any event, in order to have a successful and ultimately fair go at mediation, the aggrieved party must have had the opportunity to receive good quality legal advice; that is another service access to which the Government is indiscriminately revoking.

A number of reports suggest that the knock-on costs consequences of the reforms on other Government departments will be huge (for instance, Citizen’s Advice predicted that for every £1 of legal aid expenditure on benefits advice, the state potentially saves £8.80). If representation becomes a private expense to be met by every litigant, we will see a huge rise in litigants-in-person.

March 2011 London Anti-Cuts Protest

Especially in the context of social welfare, claimants have to navigate their way through an extremely complex set of regulations and a startlingly high degree of error in first-instance decision-making. Citizen’s Advice have shown that representation plays a pivotal role in correcting these sorts of errors: over 50% of the appeals supported by representation at tribunal are decided in favour of the appellant.

All this should lead you to question the sincerity of the Government, in this and every other place where reforms seem to be hitting the wrong people hardest, and to wonder when they will just admit that their policies are driven more by ideology and less by a concern for fairness and solidarity.

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