Gate to law closes tighter

The White Paper on legal aid brings new limits to access to the courts, argues Patricia Wynn Davies
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The Independent Online
The Government, as yesterday's White Paper on legal aid makes crystal clear, wants to discourage people from resorting to the expensive business of going to law.

As Lord Mackay, the Lord Chancellor, put it in a recent speech: "We need to encourage people to take a robust approach to life and accept that not evey knock requires a legal response."

That is advice not to be lightly disregarded. Pursuing even a straightforward claim in the courts is often disproportionately expensive compared to the often disappointing result actually achieved. No, litigation is not for the unwary. And yes, no one likes having to pay for lawyers and some people prefer to drop their potential legal claim and buy a holiday instead.

There is a difference, however, between reaching a decision and having virtually no choice at all. Lord Woolf's civil justice reforms, to be unveiled next month, are designed to make the system more client- rather than lawyer-friendly. Over recent years, large numbers of middle-income people, progressively excluded from civil legal aid by cuts in eligibility, have all but lost that power of choice. They are too well-off to qualify for legal aid, even with contributions to costs from their own funds, but not well-off enough to fund their cases on their own.

Far from addressing that problem, yesterday's paper moves in precisely the opposite direction with a proposal to put people on the poverty line in a similar, unenviable position. The Government wants to give people a "stake" in their own cases - and hopefully to persuade them, like the middle-income groups, not to go to law. To do this it would increase contributions to the costs of people bringing cases and abolish the existing protection that unsuccessful assisted people have from the usual rule that losers pay their opponents' legal costs.

Those on low incomes already struggle to pay contributions and are unlikely to risk a potential doubling of their liability, which will be repayable in some cases by years of monthly instalments. As the Government's own research shows - in a report from the Legal Aid Board slipped out a fortnight ago after a lengthy delay - the change will mean one thing: an increase in the number of people who decline offers of legal aid.

That will be music to the ears of Gary Streeter, the new Lord Chancellor's Department junior minister, who has dubbed assisted persons "state-funded Rottweilers" because he believes the system is too weighted in their favour.

The current setup - and some manifestly poor decisions by the Legal Aid Board, which administers the civil scheme - has certainly given ministers plenty of bullets to fire. A string of high-profile names with chequered histories - Asil Nadir, Darius Guppy, Peter Clowes, Roger Levitt - have been beneficiaries of the seemingly bottomless pit that is legal aid, prompting a clampdown on "apparently wealthy" claimants with substantial assets in bricks and mortar.

But let us take another example from the Government's own research: an unemployed man on pounds 63 a week invalidity benefit who turned down legal aid because he could not afford a pounds 5-a-week contribution.

There are not going to be many Rottweilers at the bottom of the pile.

None of this means that there is no need to tighten the rules. But a tighter test of merit, or as the paper now puts it, "deservingness", alone would have solved most of the problem of waste.

Nor does it mean that there is no costs injustice to some opponents of assisted people, only that the problem could be tackled in another way. Opponents can already get their costs paid by the Legal Aid Board where they would suffer "severe" financial hardship. That test could be softened to allow for hardship instead of severe hardship. That would cost a few more millions than the Treasury would like to spend, but only about 6 per cent of legally aided people (about 25,000) lose their cases. Yet more bureaucracy to extract ever-greater contributions from people of modest means is taking a sledge-hammer to crack a nut.

It all began rather differently with last year's Green Paper, when the accent was on improving access to justice. While opposition to the proposed introduction of pre-determined budgets - the law's first encounter with rationing - remains, even some of the Government's most ardent critics were prepared to back the ending of the system of paying solicitors hourly rates. Instead law firms and specialist agencies meeting quality criteria would tender for block contracts, with cash then being concentrated on the best practitioners. While many solicitors were busy protesting at this latest inroad into their traditional practices, the Government was quietly claiming credit for proposing reforms that would raise quality.

But the support Lord Mackay might have had for his original plans will have been significantly eroded by the final upshot. His earlier suggestion that the existing advice and assistance scheme for welfare cases might be extended to cover representation in a wider range of tribunals has been firmly stamped upon. The package is supposed to appeal to middle England. But out, too, has gone a suggestion that legal aid be used to finance loans for middle-income groups to bring cases, on condition that they covered the costs of their opponents if they lost. In comes a disincentive for those least able to assert their rights themselves.

The title "Striking the Balance" says it all. And for the poorest people in society, the balance is swinging too far the other way.