On the 15th November 2010 the Government published proposals for reform of the Legal Aid system in England and Wales, set out in a Ministry of Justice Green Paper. Under these proposals (and according to the Government’s own figures), nearly half a million people would lose access to legal aid.
It is proposed that legal aid is abolished for advice on areas including debt, education, employment, housing, family, immigration and welfare benefits.
Debt advice would only be available when a person’s home is at immediate risk.
In family law, legal aid will no longer be available for cases involving divorce, contact to children or adoption except where there are issues of domestic violence.
Housing advice would only be available in cases involving homelessness or disrepair leading to serious ill health.
All legal aid would be cut for employment and welfare benefits issues. Immigration advice would only be available to those detained or fleeing torture, persecution or otherwise seeking asylum.
Unless you are within one of the exceptions, if you have a problem in those areas, and can’t afford to pay for legal advice, you will be on your own.
The Government says that cuts are necessary because the costs of the legal aid system have increased and that money needs to be saved. It is calculated that the proposals would save £350 million pounds a year from the legal aid budget.
Concerns have been raised at the impact of the cuts on those in genuine need of legal help but without the means to pay for this. Legal aid clients are typically some of the most vulnerable in society and good legal representation where required is essential if they are to obtain justice. Concerns have been raised that the effect of the proposals would be to deny justice to the most vulnerable and tilt the balance further in favour of the powerful against the weak.
The Law Society has also criticised the principles underlying the Government’s proposals stating that implementation of them would represent a sharp break from the longstanding consensus that effective access to justice irrespective of the means to pay is essential to underpin the rule of law. In other words, if whole sections of the population cannot access justice when they need to, then the whole system is undermined.
Concerns have also been raised regarding the impact that the cuts could have upon the provision of vital community services like the Citizens’ Advice Bureau.
In the North West, for example, Bolton CAB, which reports that it provided advice to 14,000 people last year, has said that it may well be forced to close if the Government pushes ahead with the proposed cuts.
The justification behind removing legal aid in the areas identified seems to be that legal aid should be removed for cases which are of low importance or significance and that change is needed to discourage a ‘culture of litigation’. Whether this reflects the reality of the proposed changes though requires closer scrutiny.
If you were being denied contact with your child or children would you really feel that your case was of low importance? Is a child’s relationship with a parent really of little significance to the child?
If you were disabled and your benefits had been wrongly reduced, would a wish to challenge this decision really be a trivial one?
If your child had special needs and was not getting the required support at school, would a wish to challenge this be spurious and petty?
The Law Society is lobbying the Government to take a different approach and look at alternative ways of funding legal aid, as opposed to cutting the budget.
It is suggested that those that cause the expense in the first place – local authorities, other public bodies making poor decisions, financial services and the alcohol industries – should bear at least part of the expense.
Significant savings could also be made by improving procedures and efficiencies without affecting frontline service.
A campaign group, ‘Justice for All’ – a coalition of charities, legal and advice agencies, politicians, trade unions, political groups and members of the public – has been set up to fight to protect legal aid. They argue that bureaucracy should be cut before frontline services and that alternatives to legal processes should be improved rather than access to those processes being scrapped.
At a time when public spending is being cut across the board (rightly or wrongly), it could be argued that legal aid spending cannot be exempt, but is depriving hundreds of thousands of people of the right to effective access to justice really a price worth paying?
The Government says that it has only issued proposals for consultation and that no firm decisions have been reached. Only time will tell if the Government is actually willing to listen to the very real concerns being raised regarding its proposals.
By family solicitor, Tim Galbraith
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