Legal aid: The gravy train is still on track

The Mail is pleased to see a “halt to the legal aid gravy train”, but just how and why have Kenneth Clarke’s proposals for legal aid not resulted in more public outrage? Just over a month before consultation closes, proposals to significantly reduce civil legal aid are making it back into the media in places… but surely they won’t get through without a real fuss, will they?

Dust appears finally to have resettled on the New Year as Britain begins to remember just what was being proposed by the government slightly before we went on our merry way out of 2010.

Yesterday’s aide-memoire from George Monbiot, on the same day that the pro-bono team of a major global law firm launch the campaign ”it’s not just peanuts” which attempts in part to bridge the encroaching gulf between demand and supply of free legal access, will hopefully help to (re)ignite debate around proposed changes to the system.

In short, proposals to the system, announced by Clarke on November 15th 2010 are expected to reduce the number of civil cases by 500,000 by cutting the legal aid bill by £350m a year by 2015.

Some of the key areas facing cuts to legal support include divorce, welfare benefits and school exclusion appeals; employment; immigration where the person is not detained; and clinical negligence and personal injury. Additionally, Mr Clarke announced plans to introduce a means-tested contribution in legal aid cases: currently, anyone with assets worth less than £8,000 qualifies for some legal aid - with those worth up to £3,000 paying nothing and others expected to make a contribution.

Under proposed changes to the new system, anyone with assets worth more than £1,000 will have to pay at least £100 towards their legal costs. Fees paid in civil and family cases are also facing cuts of “10% across the board”. It is certainly not the need for reform which is in question, indeed Sadiq Khan, shadow Secretary of State for Justice, confirmed that in power, Labour would also have made changes to the current system.

The problem is that yet again those least able to support themselves are facing the highest cost and hardly anyone dares mention it for fear, as Monbiot fairly points out, of looking like they support the “fat cat” lawyer. Work he’s been doing with legal firm Turpin and Miller looks at the potential impact of changes highlighting case studies which would be affected by proposals:

1) A woman was beaten up by police outside a pub, who then claimed she had assaulted them. CCTV evidence shows her account was true and theirs was false. She can’t launch proceedings without a CCTV footage report. Today legal aid will pay; when the green paper becomes law, it won’t. Who gains? The police, whose abuse of power will meet even fewer impediments.

2) A prisoner was kept inside for 14 months after he should have been released, because the probation service lost his notes. Today he can get legal aid to pursue a compensation claim for this cock-up. After Clarke has savaged the system, he won’t be eligible. Who gains? The incompetent bureaucrats who wrongly deprived a man of his liberty. So much for the government’s promise to get the state off our backs.

Quite unbelievable is Clarke’s suggestion to the BBC that “the best way for people of limited means to access justice in areas such as medical negligence would be to use no-win, no-fee lawyers”. That’s right; he’s sweeping vulnerable, lower income families and individuals towards the high-pressure, high cost, highly selective system which, far from providing a supportive approach to civil law, is implicative of the very ‘gravy train’ culture outlined so frequently in the tabloid press.

No-win-no-fee systems are, in fairness, also subject to changes under Mr Clarke’s proposals, but as it currently stands, there is no effective joined-up system for regulating conditional fee arrangements to ensure consumers are protected on both quality of advice and costs.

In particular, the activities of claims management companies seem to fall largely outside the system of regulation yet they are increasingly the primary introducer of the consumer to the claims process as well as a complex package of financial services - consequently the information and advice they give is of critical significance to the consumer. A voluntary code is still in its infancy.

The proposed changes appear directly to penalise the very poorest in society with more than half the cuts hitting the area of family cases such as child access, non-violent domestic disputes, divorce cases, and welfare. Complete outrage was expected but the tabloid packaging, or total political apathy has prevented that from being the case… Have we given up the fight?