Britain is an unhappy place. Government austerity policies are having deep impacts on social life. The UK is now a country of soup kitchens. The courts and legal services are not immune. This posting covers a number of matters of concern.
A recent article in a national newspaper pointed out that:
“The government plans to sever the link between legal aid and the kind of legal services needed by the poor and vulnerable by scrapping advice for social welfare law: advice on welfare benefits, employment, debt, most housing and immigration”
Restricting legal services to poor people is one thing; but, there is evidence that such policies have broader consequences. For instance, limiting legal aid means that some people have to ‘become their own solicitors’-or litigants in person. In a recent ruling, in Wright v Michael Wright Supplies Ltd  EWCA Civ 234, Sir Alan Ward commented:
“What I find so depressing is that the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person. Two problems in particular are revealed. The first is how to bring order to the chaos which litigants in person invariably – and wholly understandably – manage to create in putting forward their claims and defences. Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved….. It may be [savings are made because legal aid no longer covers certain kinds of litigation] but saving expenditure in one public department in this instance simply increases it in the courts. The expense of three judges of the Court of Appeal dealing with this kind of appeal is enormous. The consequences by way of delay of other appeals which need to be heard are unquantifiable. The appeal would certainly never have occurred if the litigants had been represented… We may have to accept that we live in austere times, but as I come to the end of eighteen years service in this court, I shall not refrain from expressing my conviction that justice will be ill served indeed by this emasculation of legal aid.”
The costs of restricting legal aid are not just those run up by delays in court. One of the most compelling points made in the recent debate was by Doreen Lawrence:
“If the current plans for legal aid had been in place in 1993, Neville and I may not have been able to maintain our two-decades-long campaign for justice. Two killers would still be walking the streets, and the exposure of large-scale malpractice in the police force may never have happened.”
Legal aid is about ‘the quality of justice’- if one has any commitment to ideas of equality and a belief that law serves both ‘the rich and the poor’ alike, then one might conclude that the ongoing cuts to legal aid are damaging a public service; the risk is that lawyers and courts become the preserve of rich individuals and commercial concerns- whilst the poor (and perhaps everyone else) has to make do with ‘advice services’ that are limited in the extent to which they can litigate-or- as Doreen Lawrence suggests, miscarriages of justice are not brought to light.
We can elaborate some of these arguments by looking at the Low Commission’s report. The Low Commission was established in 2012 by the Legal Action Group to examine the impact of legal aid changes. One of the Commission’s main findings was that legal aid cuts have “destabilised and reduced the advice and legal support sector at a time of increased need.” They also point out that “as a result, instead of saving money, the cutbacks are very likely to end up costing more elsewhere in the system.” (vii) It would be worth linking this point with the discussion of litigants in person in the Study Guide (9.3.4)
The Low Commission also drew attention to payday loan companies and recommended that “the Financial Conduct Authority should use its powers under the legislation to impose a levy on payday loan companies to fund debt advice services.”
An unprecedented ‘strike’ of barristers and solicitors against the government’s legal aid cuts took place in on the 6th January 2014, causing courts to close throughout England and Wales. It would appear that the civil courts are being subject to radical “cost saving measure[s]”. A key element in the ‘privatisation’ of civil justice, thus takes us to a consideration of legal aid. If one has any commitment to ideas of equality and a belief that law serves both ‘the rich and the poor’ alike, one might conclude that “cost saving methods” are damaging a public service; the risk is that lawyers and courts become the preserve of rich individuals and commercial concerns- whilst the poor (and perhaps everyone else) have to make do with ‘advice services’ that are limited in the extent to which they can litigate.
This blog was written by Professor Adam Gearey, law lecturer at Birkbeck, University of London.