The Government’s proposals for legal aid cuts have drawn a great deal of criticism, but the focus of nearly all of this has been on criminal defence work. It’s a failing I have been guilt of myself (I co-signed a letter to the Times which concentrated purely on the cuts to criminal legal aid).
The proposals include (I have taken these from the Law Society’s summary):
1. Reduce scope of prison law to cases that involve length of detention and adjudications that require representation to comply with Article 6
2. Residence test for civil legal aid restricting eligibility to those with at least 12 months’ lawful residence.
3. Legal aid payments for judicial reviews will only be made if the permission application is successful.
4. Civil cases to have at least 50 per cent change of success – ‘borderline’ cases no longer eligible.
There are a number of potentially serious results which could flow from such proposals. Rather than assume a Government that takes seriously legal obligations and the rights of unpopular individuals in positions of significant vulnerability, let me concentrate on some more pragmatic implications.
By taking matters out of scope, it may generate large numbers of exceptional funding applications (the safety valve procedure by which the MoJ hope the Legal Aid Agency can avoid Article 6 challenges to the lawfulness of denial of legal aid). When turned down some of these will be subject to judicial review. Any judicial receptiveness to such claims through, say, granting some of them may produce a cascade of further reviews and funding decisions. Item three will encourage firms to issue proceedings in any circumstances where they are able to get paid. There is the potential for this to create more cost than it cuts.
There are a number of response to 4. It rather depends on how well firms can identify which cases have prospects of success. I have seen no persuasive work on this. If the nature of the work is such that predictability is very difficult, then firms will be able to pick very few winners; they will cut caseloads dramatically to a small number of ‘dead-certs’ or give up altogether. This may kill off certain areas of work. There is a further concern that specialists in prison law cannot practice without criminal defence contracts. The forced merger/consortia approach of the PCT proposals spreads further. There is a good case for saying it is a wasteful process with uncertain outcomes; though it may also aid prison lawyers to better identify (and therefore increase somewhat) the identification of prison law cases that can be run. It is another way in which the reforms may drive up costs.
Another response is to seek inter partes costs orders in judicial reviews far more frequently than now. This would have two effects: increase the burden on courts; and, where successful, shift what was once legal aid expenditure onto other public bodies and departments.
Now in all honesty, I do not know how bad this is. These are just plausible ideas about potential problems. They make sense to me; but I do not know how serious the issues are in fact. I have read, rather quickly because it pained me so, the Government’s impact assessments. These are never very convincing documents; but these ones looked more superficial than normal. I was not at all convinced that the Government knows what it is doing. If costs rise and costs are spread to a wider range of departments, the MoJ may look incompetent to its sibling departments and the Treasury. It will be of little comfort to anyone: bad cuts, beget more cuts.
Public law work associated with immigration and prison law cases is not glamorous or popular, but it can be important in rule of law terms, and also deal with matters where human vulnerability is intolerably acute. Cases that deal with children, mental health problems, and the hospitalised as well as some of the State’s dirty washing (aberrant behaviour of troops abroad, behaviour of the security services) protect essential elements of humanity and democratic health. These changes may also cost us more because of a hasty intervention to save modest sums of very small parts of the legal aid budget.
There is a meeting at the LSE on Monday to discuss these issues. I hope practitioners and others come with good questions and even better answers as to what these proposals mean. There is a good deal of understandable, but overheated rhetoric, on other elements of legal aid and associated reform. The professions need to speak up beyond criminal law but do so in measured and forensic terms that speak to the Government’s concerns. Details of the event are here.