Podium: Why legal aid must continue

Extract from the Barnett Lecture by the Lord Chief Justice of England delivered at Toynbee Hall, London
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ON ITS centenary in 1984, Toynbee Hall was justly acclaimed as the pioneering and imaginative venture it was. The centenary now of the Poor Man's Lawyer at Toynbee Hall - or the Legal Aid centre as it is now called - is inevitably a lesser event, but this service has responded to a pressing and unmet social need.

Despite many initiatives and despite the continuing and valuable work done by legal advice centres such as that at Toynbee Hall, there can be no doubt that the main burden of bringing legal advice and representation to those who cannot pay for it has fallen over the last half century on the legal aid scheme.

Over the past half-century the scheme has, to a very great extent, lived up to the ideals of those who conceived and established it: countless people have been enabled by it to assert and defend their rights in a way which they could not otherwise have done. But during the 1990s, the scheme has come under great and growing pressure.

The issue that has emerged, between the Bar and the Law Society on the one side and the government on the other is, in some ways, surprisingly narrow. No one argues that the system should continue to operate as it currently does.

It is accepted that the Lord Chancellor is bound by his government's spending limits, and there is a welcome for his pledge that overall spending on legal aid will not be reduced. There is a fairly general acceptance that legal aid has been used in the past to finance cases which did not deserve support on their merits.

Most would agree on the desirability of focusing available resources. There is, however, a radical difference of view on the best means of achieving these ends, and the crux of the difference concerns the extension of conditional fee arrangements and the corresponding withdrawal of legal aid.

The Government's argument is attractively, perhaps even deceptively, simple. It starts from the fact that upwards of 30,000 personal injury cases have already been funded by conditional fee agreements. The virtue of extending these agreements, it is argued,

is that they require a party's professional advisers personally to back their judgement that a claim has a good chance of success; if they have too little confidence in their own judgement, then there is no reason (save in special cases) why the taxpayer should back it.

Opponents of these proposals challenge the government's starting point. The Bar does not accept that insurance cover would become available, at reasonable costs, in the much wider and more varied range of disputes which it is proposed to exclude from legal aid cover. The Bar, therefore disagrees, strongly, with the proposal to extend conditional fee agreements and abolish legal aid in money recovery claims.

It is important to bear in mind that the Government's proposals do not affect the availability of legal aid in criminal cases which, according to the most recent figures, absorbed pounds 355 million out of the total net expenditure of pounds 1,217 million.

While the scale of fees paid for such cases is open to review, it would be hard for the government to make substantial changes in principle under the European Convention on Human Rights.

In relation to the main thrust of the government's proposals for the reform of civil legal aid, the argument is a complex and closely reasoned one.

Those of us who have had no contact with insurance interests cannot be other than unsure whether insurance cover will be available in the much wider range of civil proceedings which are suggested as suitable for conditional fee agreements.

If such cover is not generally available at reasonable cost, then it seems unlikely that conditional fee agreements will fill the gap left by the withdrawal of legal aid; unless of course we were to modify the rule, taken for granted by lawyers in this country, but not in comparable jurisdictions elsewhere, that the successful party in litigation should recover his reasonable costs against the unsuccessful party.

The guiding principle must surely be: that the laws of our country exist for the benefit of the poor as well as the rich; that equality before the law, to be meaningful, must ensure that justice is available to all, irrespective of means.

For it is three and a half centuries since Colonel Rainsborough so memorably observed, during the Putney Debates of 1648, that "The poorest he that is in England has a life to live as the greatest he".