Legal aid proposals – decimation dressed as reform: YLAL’s response

Government proposals on legal aid will restrict access to justice for all but the very rich and the near destitute. This is not reform. Even for the poorest, access to justice will only be available to avert disaster. Many legal rights will become meaningless as access to enforce them will be barred unless you can pay. YLAL believes the proposals will totally undermine the integrity of our justice system.

Many of the cuts stem from the exclusion of entire categories of law from the scope of the legal aid budget. In doing this the Government has set out “to achieve a revised scheme which focuses resources on those cases where the litigant is at the risk of very serious consequences.” We believe that legal aid has a greater role to play than simply averting disaster. Legal aid is fundamental to promoting equality and upholding the rule of law – cornerstones of a fair, democratic society. Many of the Government’s proposals overlook the importance of these values. In particular:

• Legal aid will not be available to pay for representation at court in private family law cases except those involving domestic violence. This will mean that legal aid is not available, for example, where one partner is forced to take the other to court to gain contact with their child. This change undervalues the huge personal importance of such issues and risk inequality of arms where one party can afford to pay for a lawyer and the other can not.

• Legal aid will not be available in immigration cases which do not involve a claim for asylum or a challenge to the legality of the person being locked up in immigration detention. The rationale for this is that the cases being excluded invariable involve an element of “choice” i.e. a person chooses to come to the UK to study and therefore should not complain about any adverse decision which stems from this. This is complete anathema to the rule of law. The rule of law requires that everyone is equal before the law yet this proposal would mean that an immigrant who has suffered from an unfair or unlawful immigration decision would not have a legal remedy. A non-immigrant who has experienced an unfair and unlawful decision would. David Cameron publicly declared his commitment to the rule of law in his speech to the Foreign Policy Centre in 2008 stating that this “profound expression explains almost everything you need to know about our country, our institutions, our history, our culture”. The proposed change flies in the face of this commitment.

• Legal aid will not be available where a person has been injured through the negligence of a public authority such as the council or the police, and wishes to seek compensation, except where the public body acted “very far below” the standard which the law requires of them. This creates a double standard. Those who can afford to pay for their own lawyers may seek compensation whenever a public body has acted without reasonable care and caused them injury. Those who cannot afford their own lawyer will only be able to bring their case where the public body has acted “very far below” this standard. This undermines the principle that all should be equal before the law.

• Legal aid will not be available in the majority of housing cases unless there is a risk of homelessness. This would mean that in most cases where a landlord has neglected to carry out his legal duty to repair a tenant’s property, then the tenant would not be able to take him to court to enforce his rights. Such change will only result in making the poor poorer.

• Legal aid will no longer be available in the majority of education cases. The Government observes that a typical education case involves a child’s statement of Special Educational Needs, which in turn dictates the level of support which the child receives. The Government goes on to observe that disabled children are more likely to have disabled parents. Denial of funding in these cases leads to unfairness. The parents may well not feel able to represent themselves, particularly as the claim will likely be against a school or local authority well able to fund their own legal team. The injustice in such cases, where a wrong decision has been made and not corrected, falls on an especially vulnerable group.

• Legal aid will no longer be available in a range of cases such as assault, false imprisonment and malicious prosecution. The Government considers that these cases “are generally not of high importance”. We believe this is misconceived. Such cases may involve the personal safety, liberty and psychological integrity of the individual. Where a person has been injurred it is not right that they should go without a remedy simply because they can not afford a lawyer.

• Legal aid currently is available for cases which would not otherwise receive funding where they entail a significant wider public interest. The Government intends that funding should not generally be available in such cases. We consider that the need to fund such case is entirely self-evident and that this exceptional method of funding should remain available.

In terms of who is eligible for legal aid, as opposed to what types of case, proposals to lower the limit for eligibility to £1,000, including equity in homes, will leave many without the ability to enforce their legal rights. Where funding does continue, there will be a 10% cut in fees across the board at a time when lawyers already struggling to ensure good quality advice for their clients whilst remaining financially viable.

While the criminal budget remains relatively untouched by comparison with the civil budget, legal aid for claims under the Criminal Injury Compensation Scheme is also under threat and criminal fee structures will change to a single fixed fee for a guilty plea, whether in the magistrates’ or crown court.

In addition to the changes briefly outlined above the paper goes on to make suggestions for alternative means of funding the system, outlining ways of using a collective client account across the legal profession to generate extra interest.