Justice Secretary Kenneth Clarke’s proposals for legal aid reform may sound fairly reasonable when written down; it is hard to argue that “unnecessary litigation” could…
Justice Secretary Kenneth Clarke’s proposals for legal aid reform may sound fairly reasonable when written down; it is hard to argue that “unnecessary litigation” could ever be a good thing (Ministerial Foreword: Proposals for the Reform of Legal Aid in England and Wales). However, what he deems to be “unnecessary cases”, which the public should not have to pay for, are far more debatable in practice.
He insists: “the Government strongly believes that access to justice is a hallmark of a civil society”, but chief executive of the Law Society Des Hudson claims that the proposal risks jeopardising the principle that the law should be available to all citizens, irrespective of income.
As reassuring as it sounds that legal aid funding will continue for cases involving asylum, mental health, housing and debt where a home is at immediate risk and domestic violence, the Law Society claims that the potential consequences of this reform have not been properly analysed. That the “most vulnerable” people will be left without access to legal aid. For instance, if an immigrant is not actually detained, his or her legal aid would be cut. Funding for cases involving school exclusion appeals would be dropped, potentially affecting young people already in disadvantaged areas and having a negative impact on the rest of their education and prospects.
The list of those who would be put at risk by these reforms is extensive. While advantages may include cheaper insurance due to the lower payouts required, and a reduction in genuinely “unnecessary” claims, I cannot see that it is worth making legal advice and representation more elusive for those who need it the most. While Clarke claims that the most vulnerable are the ones who will remain protected, Hudson has “severe doubts” that this will be put into practice.
This reform risks not only making it harder for those in real need of legal assistance to find the help they need, but also discouraging genuine claims, leaving ordinary people without the defence and representation they deserve. It is suggested that to make lawyers less liable for unsuccessful defences in court, clients would be liable for costs if they were found to have acted unreasonably. While not only making it less likely that clients would wish to pursue a genuine claim, I cannot help but ask why clients are not told they are being unreasonable before a lawyer agrees to represent them.
A final worry about this proposal is the incentive it could give some people to lie or exaggerate a situation in court, with devastating effects. Making funding available for divorce cases only where domestic violence is claimed, for instance, could have terribly adverse effects on the lives of people in unhappy marriages. Making it harder to claim on smaller issues risks increasing the likelihood of exaggeration or outright lies in court to obtain financial coverage for the case.
According to the currently dominant paradigm, the government has to make cuts and reform areas of government spending. However, it seems unlikely that the positive spin on cutting legal aid will be noticed by any of those adversely affected by these overlooked consequences.
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