Legal aid and civil justice

Effective access to the courts is being threatened.

Yesterday's written statement of the Lord Chancellor, Kenneth Clarke QC MP began well enough. Introducing the Legal Aid, Sentencing and Punishment of Offenders Bill, he said:

Protecting the public from crime, ensuring those who break the law face the consequences, and providing swift, cost-effective and fair access to justice are fundamental responsibilities of the state towards its citizens.

So there you have it. In respect to both civil and criminal justice, providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens.

But in respect of civil justice -- where one party takes another to court -- what does that actually mean?

Civil courts have two broadly overlapping functions. They provide a forum for settling disputes and they provide the means by which individuals can rely on their legal rights. Ideally, a civil court should do both: disputes are resolved by a judge determining the respective legal rights of the claimant and defendant.

In practice, however, almost all civil litigation is settled before it gets anywhere close to a judge for final disposal. As a general rule, litigation is settled in favour of the party in the stronger negotiating position: the party with more money, with better access to appropriate legal advice, and with the greater ability to assume the risk of losing.

In this way, the early settlement of civil disputes will usually tend to disadvantage the claimant or defendant that is weaker than the opposing party. It is only if the claimant can get their case before an impartial and independent court that they can hope to take the benefit of their legal rights. Otherwise, civil litigation is reduced to what the stronger party can get away with. Dispute resolution -- even "early dispute resolution" -- is not identical to access to justice. Indeed, it can mean the reverse.

With this in mind, let us see what Clarke also said yesterday in the written statement, specifically about civil justice:

In civil justice, we have a system burdened by spiraling costs, slow court procedures, unnecessary litigation, and too limited an awareness of alternatives to court -- all of which add to a fear of a compensation culture. In particular, our current system of legal aid too often encourages people to bring their problems before the courts, even when they are not the right place to provide good solutions and sometimes for litigation that people paying out of their own pocket would not have pursued.

However, these appear to be weasel words.

Take, for example, "our current system of legal aid too often encourages people to bring their problems before the courts" and replace the word "encourages" with the word "enables". If the reality of the matter is that the current system of legal aid enables weaker parties to have access to justice - and the determination of their legal rights by judges - this cannot be sidestepped easily by mischaracterising this access as "encouragement".

Similarly, take "sometimes for litigation that people paying out of their own pocket would not have pursued" and replace the word "would" with "could". Again, if people cannot pursue litigation but for the system of legal aid, then Clarke is mischaracterising the effect of that system.

So in one written statement, Clarke gives an assurance that he accepts providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens; and then a few sentences later he undermines that assurance in respect of civil justice by deftly casting aspersions on those who use legal aid so as to gain access to the courts for the determination of their legal rights.

In fact, the assault on the civil legal aid system announced yesterday is horrific and wrong-headed.

Instead of seeking to target civil legal aid on cases which may not otherwise be able to proceed to court, the Ministry of Justice is simply taking whole areas of civil law out of the system altogether.

At a stroke, legal aid will no longer be available for clinical negligence, employment, immigration, and welfare benefits cases. It will also not be available for most private family law cases, debt and housing issues, and education cases.

Just listing these areas of law makes one realise that it will be those less able and less equipped to deal with the stress and sheer expense (and costs risks) of civil litigation. Without civil legal aid, weak parties will simply be at the mercy of the litigation strategy of the stronger party.

For example, in family cases - as the Conservative MP Helen Grant pointed out yesterday in the Commons:

mediation is no panacea and that it can fail badly in family cases where there is an imbalance in power.

And it gets worse. The hope of the Ministry of Justice is that some of those who will no longer have access to civil legal aid will obtain legal help on a "no win no fee" basis, especially in respect of clinical negligence. This means that the claimant's lawyers will, if successful, charge an additional "uplift" on their fees, sometime up to 100 per cent of their actual charges, to the losing party. As the defendant will invariably be some part of the National Health Service, these "savings" will in practice cost the taxpayer twice the amount: it will just be the Department of Health's problem, not the Ministry of Justice's.

Then there is the general effect of their being more claimants and defendants without legal assistance. "Litigants in person" are a considerable drain on any courts resources. What should be one hour applications will tend to last one day, and trials which should take one day will tend to last a week. Accordingly, removing civil legal aid will be a false economy for the civil justice system as a whole.

There is no perfect form of ensuring access to justice for civil litigants without private resources. And the Ministry of Justice is having to make savings thrust upon it by the government as a whole. It cannot be blamed as if this were a policy that it formulated free from budget restraints.

All that said, the cuts to civil justice legal aid make no sense on their own terms and could cost the state more overall.

There is no reason to believe that law firms will be able to provide advice to those who no longer qualify; and those firms that do will seek often to burden the taxpayer by other means, through higher costs.

Individuals without civil legal aid or other access to lawyers will simply not seek to rely on their legal rights, or will be bullied into unfair settlements, or will clog up the already inefficient civil courts. None of these are attractive outcomes.

It may be that our Lord Chancellor sincerely believes providing swift, cost-effective and fair access to justice is a fundamental responsibility of the state towards its citizens. However, his department's current civil justice aid policy means this "fundamental responsibility" will certainly not be discharged in practice.

 

David Allen Green is legal correspondent of the New Statesman and a practising solicitor.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Harriet Harman warns that the Brexit debate has been dominated by men

The former deputy leader hit out at the marginalisation of women's voices in the EU referendum campaign.

The EU referendum campaign has been dominated by men, Labour’s former deputy leader Harriet Harman warns today. The veteran MP, who was acting Labour leader between May and September last year, said that the absence of female voices in the debate has meant that arguments about the ramifications of Brexit for British women have not been heard.

Harman has written to Sharon White, the Chief of Executive of Ofcom, expressing her “serious concern that the referendum campaign has to date been dominated by men.” She says: “Half the population of this country are women and our membership of the EU is important to women’s lives. Yet men are – as usual – pushing women out.”

Research by Labour has revealed that since the start of this year, just 10 women politicians have appeared on the BBC’s Today programme to discuss the referendum, compared to 48 men. On BBC Breakfast over the same time period, there have been 12 male politicians interviewed on the subject compared to only 2 women. On ITV’s Good Morning Britain, 18 men and 6 women have talked about the referendum.

In her letter, Harman says that the dearth of women “fails to reflect the breadth of voices involved with the campaign and as a consequence, a narrow range [of] issues ends up being discussed, leaving many women feeling shut out of the national debate.”

Harman calls on Ofcom “to do what it can amongst broadcasters to help ensure women are properly represented on broadcast media and that serious issues affecting female voters are given adequate media coverage.” 

She says: "women are being excluded and the debate narrowed.  The broadcasters have to keep a balance between those who want remain and those who want to leave. They should have a balance between men and women." 

A report published by Loughborough University yesterday found that women have been “significantly marginalised” in reporting of the referendum, with just 16 per cent of TV appearances on the subject being by women. Additionally, none of the ten individuals who have received the most press coverage on the topic is a woman.

Harman's intervention comes amidst increasing concerns that many if not all of the new “metro mayors” elected from next year will be men. Despite Greater Manchester having an equal number of male and female Labour MPs, the current candidates for the Labour nomination for the new Manchester mayoralty are all men. Luciana Berger, the Shadow Minister for mental health, is reportedly considering running to be Labour’s candidate for mayor of the Liverpool city region, but will face strong competition from incumbent mayor Joe Anderson and fellow MP Steve Rotheram.

Last week, Harriet Harman tweeted her hope that some of the new mayors would be women.  

Henry Zeffman writes about politics and is the winner of the Anthony Howard Award 2015.