Justice Select committee urges Ministry of Justice to review legal aid proposals

Justice Select Committee Report HC 681 March 2011

Justice Select Committee Report HC 681 March 2011
YLAL welcomes the report by the Justice Select Committee released today which urges the Ministry of Justice to go back to the drawing board before implementing its proposed cuts to legal aid. The Committee, which heard oral evidence from YLAL, found that the proposals "present a severe challenge to many of those involved with the justice system" and “need considerable further refinement”. It warns that “the Ministry of Justice needs to develop a greater understanding about what is driving demand and the cost of cases”. It also highlights the “need for public bodies to improve their decision-making so as to generate fewer appeals to the courts and tribunals" – an approach that YLAL has supported for many years, arguing that it is clearly better and cheaper for everyone if the state makes the right decisions in the first place.
The Committee noted the effect which legal aid cuts will have on the most vulnerable in society, as well as the wider financial implications of the cuts and the possibility of alternative savings being made by requiring government departments to make fewer mistakes. The Committee also recognised the potential of the cuts to create “advice deserts”: areas of the country where people simply cannot get legal help for their problems.
The Committee urged the Ministry of Justice to undertake better impact assessments to gauge the effect which the cuts will have on the vulnerable individuals who depend on legal aid as well as on public expenditure more generally, before making any changes.
YLAL’s founder, Laura Janes commented:
“YLAL’s detailed response to the Green Paper sets out how the proposals present a severe challenge to the rule of law and justice itself. The proposals will totally destroy the integrity of our justice system by literally slicing access to justice in half so that legal aid is preserved only for the poorest people in the most desperate situations. We welcome the Committee’s thoughtful analysis but the push for ‘further refinement’ is something of an understatement.
While it is right that the Committee has recognised the impact which the cuts will have on the most vulnerable I am disappointed that so little weight has been given to the impact which the proposals will have on the legal profession itself. The fact that the Government’s proposals will mean that many good and trusted solicitors firms will go out of business or be replaced by a telephone advice service, creates a risk that there will not be enough dedicated, quality legal aid lawyers to carry out this hugely important work in the future. These changes will have a huge effect on the ability of new and aspiring entrants to legal aid to provide good quality services to achieve social justice."
YLAL has prepared a summary of the report:
Remit of the report
The objective of the Committee’s report, which focused chiefly on the proposed cuts to civil legal aid, was to:
“consider the impact of the Government’s proposed reform on: the cost of legal aid; litigants; the operation of courts and tribunals; and the not-for-profit sector and the legal professionals who provide services.”
Impact on the most vulnerable
The Committee noted the potential of the cuts to impact disproportionately on people with disabilities and black and minority ethnic people as well as other vulnerable groups, stating that making cuts to the scope of legal aid in these circumstances would “sit uneasily with the Government’s commitment to protect the most vulnerable in society.”
The wider economic cost of legal aid cuts
The report went on to note the potential for legal aid cuts, preventing people from getting advice to solve their problems before they spiral out of control, to create further costs down the line.
“It has been put to us that the removal from scope of many areas of social welfare law will lead to significant costs to the public purse as a result of increased burdens on, for example, health and housing services. We are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation.”
In relation to the costs which may be caused by an increase in the number of people forced to litigate in person, without having had the benefit of legal advice, the Committee was more equivocal and urged further research before any changes are made:
“There is insufficient information about the impact of litigants in person on court processes… it seems probable that the Government’s proposals, if implemented, are likely to lead to an increase in the number of litigants in person. We urge the Government to build on the findings of its ongoing research by establishing an expert group, involving members of the judiciary, lawyers and others, to review what can be done to make more effective the manner in which the courts and tribunals handle litigants in person, with a view both to making recommendations aimed at containing costs and ensuring that justice is done.”
Alternative savings
Among the Committee’s other conclusions were that, as an alternative to cutting legal aid, savings could be found by pressure being placed on Government departments to make fewer mistakes. The Committee stated that:
“we think there is potential for such a “polluter pays” principle to be extended considerably, with the DWP (and other public authorities whose decisions impact upon the courts and tribunals) required to pay a surcharge in relation to the number of cases in which their decision-making is shown to have been at fault. We think that in rejecting this idea as a “robbing Peter to pay Paul” transfer of funds around the public purse, the Minister is overlooking the potential benefit such a policy would have in providing a financial incentive to public authorities to get their decisions right first time. “
The Committee also highlighted that alternative savings could be made by making the criminal courts operate more efficiently.
Will the big society step in?
In relation to the Government’s assertions that charities and not for profit advice services can take the place of publicly funded legal advice and representation, the Committee noted that:
 “Representatives of organisations in this field have made it clear they do not believe it will be possible for their organisations to meet all the unmet demand which will be created by the proposed changes to legal aid. That assertion casts doubt on a key condition for the Government’s proposed reforms – that clients will be able to access non-legal aid-funded sources of advice.”
The Committee also cast doubt on the Government’s assertion that legal aid cuts will not undermine access to justice as, in many cases, individuals will be able to take their case to a Tribunal without legal advice”
“we are concerned that the removal of legal aid for legal help could cause more cases without a realistic chance of success to reach tribunals (thus increasing the tribunals’ costs). We are also concerned that the ability of the most vulnerable people to present their cases will be weakened because they will not have had help and advice in preparing them. This could deny justice to the individuals concerned and increase the time and expense necessary to deal with the case at tribunal.”
Risk of firms going out of business
However, in relation to the risk that a reduction in the fees paid to legal aid lawyers will result in businesses closing the Committee took a harder line, stating that it is more important that legal aid remain available for crucial areas of law:
 “a further important saving — £72 million annually — would be realised from the Government’s proposed 10% reduction in fees for civil and family legal aid. We do not underestimate the difficult situation faced by many legal aid providers… however, given the extent of savings which the Ministry of Justice is having to make, we think in principle that it is correct that fees are reduced rather than, for example, further changes made to scope.”