The English condition: a view into a domestic debate (2011-03-03)
The English condition: a view into a domestic debate
In the words of a pop hit of my youth, ‘do not let me be misunderstood’. Publicly, we cannot be defeatist about the government’s legal aid proposals. But we also need the quiet discussion which all lawyers have, at some time, with a client: ‘I understand your cause is noble; your demands just; your argument strong. But, just for a moment, let’s acknowledge that you might lose. What might we save from the wreckage?’
In the immediate future, the answer may be, ‘Not much’. Justice Ministers Ken Clarke and Jonathon Djanogly do not present themselves as crazed financial neo-cons. But, the capacity for mercy is well above their paygrade, lodging unattainably with the Chancellor and the Prime Minister. So, the package in the consultation paper is pretty likely to be implemented in toto.
But, in this robust position may lie an ultimate weakness. The consultation paper was hurriedly knocked up by civil servants under pressure and ministers unfamiliar with office. Intellectually, it is a dog’s breakfast. The underlying political brief shines through all too clearly: ‘Preserve the scope of criminal and anything that might lead us to be judicially reviewed, at least for the time being. Squeeze remuneration to a level which will lead to complaints but the profession can probably just about live with. Hit clients twice as hard as the lawyers: they won’t complain so much. Slash civil scope. Cuts of £450m would be good: anything above £350m acceptable. Any less and we will all be sharing the same railway carriage to Siberia.’
In this process, corners have been cut – not least with history. The Ministry states that: ‘The scope of legal aid has expanded beyond its original intentions …’ This is simply not true: legal aid schemes were implemented piecemeal but the original intention of the Legal Aid Act 1949 was comprehensive: to provide ‘legal advice for those of slender means and resources so that no one will be financially unable to prosecute a just and reasonable claim or defend a legal right’. By contrast, these proposals are piecemeal but intended to be implemented comprehensively.
In this incoherence lies a future instability. The government is just beginning to face a political narrative which is still largely about job and education cuts. Give it a couple of years and the daily media narrative will be dominated by the impact of the cuts on service users. There will be limitless tales of the deserving poor facing misery. Legal aid will fit into this wider story. Parents of children with catastrophic birth injuries will be getting no assistance. Disabled kids will be deprived of help at special needs assessments. Discontent will peak just before the next election. So, there must be some hope that these proposals are not the last word.
We need to identify issues that we might win either now or in the near future. I make it six possibles. Top of the list must be clinical -negligence through the investigative stage – certainly for cases of catastrophic injury. This has the backing of Sir Rupert Jackson, the judge who has just completed a review of costs. Minister Jonathan Djanogly has publicly wobbled on this one at conferences on the reform. Second is education. The consultation paper says that a couple of NGOs can handle the cases but both of them say they can’t. Special needs cases are difficult and will get no easier with local authorities under pressure. Some very unattractive publicity will emerge if cuts proceed. Third, it makes absolutely no sense to propose means tests for legal aid which are more stringent than those for minimum income support. The paper assumes that litigants have some form of choice but, actually, defendants don’t. In any event, the changes to scope are designed to cut out all but the most deserving. Fourth, it looks doubtful if the idea of snitching client (trust) account income will raise much. The proposal might have more chance if the income went to an independent agency such as the Access to Justice Foundation rather than the Treasury. But, when the money is just to go to the government, clients and lawyers will simply rearrange their affairs. Fifth, the ministry will finally introduce competitive tendering for criminal contracts but we need to win the right of specialist providers, both solicitors and advocates, to act as
‘lone wolves’. In a really constitutionally important case like serious terrorism, suspects and the communities from which they come need to get representation that they trust. If they don’t, that will feed into a wider narrative of discrimination and victimisation.
Finally, there is the proposed telephone call centre. This is an interesting proposal. Ontario, for example, has established a similar sort of provision which has proved very effective in extending advice (see the last newsletter). The important difference is that this call centre is designed to be exclusive. The implied subtext is that it will cut down on legal aid. Confidence in the extent to which this proposal had been thought through is as not helped by the Ministry rushing out a one page supplement to its consultation paper. This explains that clients will be able to bypass the call centre in an emergency. Any practitioner could tell you how difficult it will be for call centre staff to get callers succinctly to articulate their problem. This proposal will predictably lead to a trail of judicial review of hard pressed staff who did not properly understand the issue with which they were presented.
The legal profession is right to warn publicly of the potentially catastrophic effect on the provision of legal aid in these proposals. But, we also need to look for the victories that may be won along the way. The consultation paper is insubstantial. We are in for a difficult time. The Animals are long since consigned to the past but the fat lady has yet to sing.
This article is substantially reprinted from the Law Society Gazette where it first appeared in the edition of 27th February 2011