“What plays out will be a crisis in the justice system” That
was the sobering warning of Steve Hynes, Director of the Legal Action Group at
a panel debate at the College of Law, London on Tuesday 8th May 2012,
considering “What next for Legal Aid?”
Hynes was joined by Andy Slaughter MP, Shadow Minister for Justice. Des Hudson,
Chief Executive of the Law Society and Catherine Baksi, Law Society Gazette
Reporter with Dr Sara Chandler, the Head of the College’s Legal Advice Centre
and Pro Bono provision.
In spite of the damage that has and will be done to our
legal aid provision with the passing of the now infamous Legal Aid, Sentencing
and Punishment of Offenders (LAPSO) Bill, the message, particularly from the
practitioners on the panel was resoundingly defiant “we are not going away” and
as the Shadow Justice Minister put it, “survival is a built-in instinct of the
Legal Aid lawyer”. One way or another, it will survive. But of course it is
precisely the form of that survival that was the subject of the debate.
LAPSO is undoubtedly part of a wider government programme
to unravel the Welfare State. Whether
you want to attempt to justify that in the language of austerity or if you see
it as an ideological belief in minimising the role and responsibilities of the
State, the reality is undeniable – lest we forget the top-down reorganisation
of the NHS, Welfare reforms and expansion of the “Free Schools” initiative. As
a result, the most vulnerable and the poorest in society find themselves thrust
back into a Victorian age of dependency on philanthropy, on charity, dare I say
it, the “Big” society (and by the way, if you insist on giving money to charity
we’ll tax that, better off banking in Switzerland or Monaco if you want to
avoid the taxman). What we are likely to
see are co-operatives, trade unions and other service providers who are able to
capitalise on the Alternative Business Structures created under the Legal
Services Act 2007 at least trying to make up the short-fall. By definition
though, this is a regressive step and one that could see as many as 650,000
people without access to legal advice and/or representation. Put in such stark
terms, it was clear from the outset that no alternative or combination thereof
would be able to make up for that short fall.
One of the things, particularly emphasised by Des Hudson,
that we must now do is to make the most of legal campaigning that the Act gives
rise to. The boundaries need to be set on what constitutes an “exceptional”
case under s. 10 as well as the possibility of bringing areas back into the
scope of legal aid using the powers provided by s.9.
Where a case would not usually be covered by legal aid but
it is exceptional, nominally, the Lord Chancellor can extend legal aid to cover
such a case. According to s. 10, a case will be exceptional if:
(a)..it is necessary to make the services available to the
individual under this Part because failure to do so would be a breach of—
(i)the individual’s Convention rights (within the meaning of
the Human Rights Act 1998), or
(ii)any rights of the individual to the provision of legal
services that are enforceable EU rights, or
(b)that it is appropriate to do so, in the particular
circumstances of the case, having regard to any risk that failure to do so
would be such a breach.
On its face, there is clearly a huge potential for creative
advocates to bring cases within this section given the pervasive nature of
European law and Convention Rights. However, I wouldn’t be surprised to see the
courts adopting the restrictive construction that is common where public
policy/spending decisions are so contentious and given the nature of
legislative scrutiny that the Act has had. In which case, we can expect typical
references to democratic legitimacy and maintaining the constitutional
boundaries of arms of the State. The Explanatory Notes seem to indicate a
restrictive approach will be taken, (citing a number of Strasbourg authorities)
-surprise, surprise:
It is clear from the case law that Article 6 embodies not
only procedural guarantees of fairness, but also the right of access to the
court itself. However, the provision of legal aid is not a pre-requisite for
securing such access (indeed, in certain eventualities, the possibility of
appearing before a court in person, even without a lawyer’s assistance will
meet the requirements of Article 6)
It continues (emphasis added):
The case law demonstrates that, in practice, Article 6 only
requires legal aid to be provided in exceptional circumstances, where its
withholding would make the assertion of a civil claim practically impossible,
or would lead to an obvious unfairness in the proceedings.
The suggested factors that will need to be considered in
deciding whether a case satisfies the statutory requirements are :
- the importance of what is at stake for the applicant in the proceedings
- the complexity of the relevant law and procedure; and
- the applicant’s capacity to represent him or herself effectively.
Importantly, the case law also states that determining
whether a case is exceptional will depend on the facts of a particular
case (McVicar v United Kingdom (2002) 35 EHRR 22) which is an open
invitation to litigation.
Section 9(2) also provides the Lord Chancellor with a power
by Order in Council to bring areas in and out of the scope of legal aid
provision. Looking positively, this is an avenue by which the weight of
political campaigning can be brought to bear.
It is no surprise that retaining this possibility was seen as one of the
key victories in the passing of the Act. But it clearly works both ways and it
will be just as important to make sure that the scope of legal aid is not
reduced even further through the back door once the political heat has died
down.
At the end of the discussion there was time for questions.
One of those was essentially, can we ever go back? Given that Andy Slaughter MP
was just as vociferous in his condemnation of the ConDem government,
particularly Lib Dem members who spoke passionately about their criticism of
the Act and then voted for it, you might expect something more encouraging than
what we got. “There is a (politician’s) distinction between not going what has
been done and reversing it” – in other words a Labour government wouldn’t
reverse these changes, there is no going back.
The essential question is, how highly do we value ensuring
access to justice? As Catherine Baksi said, the Ministry of Justice has not
been prepared to engage in this debate but continues to trot out the stock
refrain “the £2.1bn cost of the legal aid system is the highest in Europe and
is unsustainable, blah, blah, blah”. It may sound like a lot but how much more
will it cost once the courts have been clogged up with litigants in person, by
more appeals or by the consequences of people being denied access to the sort
of initial advice that helps to keep cases out of the courts altogether? And
let’s get away from simple costs/benefits analysis. Catherine was absolutely
right that it is only a matter of time before we start to see the human costs
of these reforms. People will lose their homes, they will suffer the
consequences of being wrongfully denied the benefits that provide their only
income and ultimately it is no exaggeration to think that someone may well die
as an indirect result.
At the same time as doing their damnedest to make our courts
an attractive forum for rich oligarchs to come and settle their commercial
disputes or defend their reputations, successive governments have cunningly
succeeded in mischaracterising Legal Aid as a cash-cow for greedy,
ambulance-chasing lawyers who have encouraged a “litigation culture at the
public’s expense. These reforms go even further than anything contemplated
before. The message is loud and clear, Access to justice is a luxury for those
that can afford it, otherwise – forget it. LAPSO will make our society less
fair, our jurisprudence poorer and leaves the right of every citizen to be
heard, irrespective of means, in tatters. The real costs of that cannot be
reduced to pounds, shillings and pence.
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