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The false logic of Ken Clarke. By Anna Schmitt

by on June 27, 2012

“This Government’s immediate priority is to reduce the financial deficit….I am seeking to develop an approach to legal aid spending which balances these necessary financial constraints with the interest of justice and the wider public interest.”
Ken Clarke announcing the Ministry of Justice review of legal aid, 23 June 2010

The Legal Aid Sentencing and Punishment of Offenders Act, which received royal assent on the 1st May 2012, not only embodied a reform to the legal aid system, but also was thought to save 350 million pounds as part of the Government’s public expenditure cuts. Since its first proposal in 2010 and its royal assent, the bill has come a long way. But the very fact that it underwent a heated parliamentary ping pong between the Commons and the Lords, who met it with fervent hostility, did much to highlight its shortcomings.

The Ministry of Justice had high hopes for its bill. As well as making savings to the budget, the Ministry also stressed the cuts were necessary, because they would transform the current legal aid system into a swift, cost effective and fair accessible justice system for all. The Ministry considers this to be a fundamental responsibility of the state towards its citizens.

However, it seems this bill is a long way from being in the best interests of justice. By cutting legal aid in key areas of the civil law, such as most of the welfare benefit, housing and employment cases, the bill affects the most vulnerable of our society.

The MoJ argued that the current legal aid system was too inviting for litigants to bring civil cases before a court, which added to the spiraling costs and slow court procedures. But one has to keep in mind that civil law suits are often settled before coming anywhere near a civil court. The party, which has better access to legal representation, hence more money to be able to afford better legal advice, will be in the stronger negotiating position. Thus this stronger party has a better chance to bring a settlement in its favour. This is not exactly the basis of a fair access to justice. Indeed civil legal aid has supported weaker parties to insist on their legal rights and bring a case before a civil court, where it is subject to a judge and not dependent on the size of the pockets of their opponents. Therefore it seems that civil legal aid rather than inviting people to go to court, enabled disadvantaged people to fight their cause, where they previously may have felt lost.

Moreover, it seems that the bill is a product of policy making without the actual evidence that the cuts will bring the sought after savings. The Law Society issued a report, arguing that the MoJ has failed to take into account possible knock-on costs resulting from the cuts and has failed to gather essential financial information to accurately realise actual savings. One example of missed costs is the extra court time used by people having to defend themselves before the court as they do not qualify anymore for legal aid. One might argue that this is as much as can be expected from the Law Society, being such a powerful lobbyist seeking to protect their profession and their astronomical fees. But this is a common misconception. The law centers, providing legal aid, are mostly run by lawyers and volunteers receiving only modest reimbursement.

Interestingly, the Law Society is not the only concerned voice over the lack of evidence based policy making by the MoJ. A report by the King’s College London voices similar concerns about the MoJ’s underestimation of the additional economic and social costs. It calculates that the net saving will be less than half of what the Government predicted to save. But the real tipping point is that the MoJ has admitted to the Justice Select Committee its own failings to identify the entire scope of the impact of the reforms, but has still decided to proceed regardless. The MoJ argued, this was due to a pressing need to deliver substantial savings in the period of the spending review. A clear example highlighting the totally contradictory logic demonstrated by the MoJ over this issue.

Without any convincing economic rationale behind the cuts, the reforms to the legal aid system simply do not make sense. The legacy of the bill will be that thousands of civil cases will lose their eligibility to free legal aid, simply to achieve a few insignificant savings for the rest of us. What will vanish as well is a common social awareness that a justice system is out there and available to protect those with moderate or little means, in the form of legal aid. If it disappears so too might the equality and fairness it provides for everyone.

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