Gate to law closes tighter

The White Paper on legal aid brings new limits to access to the courts, argues Patricia Wynn Davies

Related Topics
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.

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
iJobs Job Widget
iJobs General

Recruitment Genius: Clinical Lead / RGN

£40000 - £42000 per annum: Recruitment Genius: This is an exciting opportunity...

Recruitment Genius: IT Sales Consultant

£35000 - £40000 per annum: Recruitment Genius: This IT support company has a n...

Recruitment Genius: Works Engineer

Negotiable: Recruitment Genius: A works engineer is required in a progressive ...

Recruitment Genius: Trainee Hire Manager - Tool Hire

£21000 - £25000 per annum: Recruitment Genius: Our client is seeking someone w...

Day In a Page

Read Next

I don't blame parents who move to get their child into a good school

Chris Blackhurst
William Hague, addresses delegates at the Conservative party conference for the last time in his political career in Birmingham  

It’s only natural for politicians like William Hague to end up as journalists

Simon Kelner
Isis profits from destruction of antiquities by selling relics to dealers - and then blowing up the buildings they come from to conceal the evidence of looting

How Isis profits from destruction of antiquities

Robert Fisk on the terrorist group's manipulation of the market to increase the price of artefacts
Labour leadership: Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea

'If we lose touch we’ll end up with two decades of the Tories'

In an exclusive interview, Andy Burnham urges Jeremy Corbyn voters to think again in last-minute plea
Tunisia fears its Arab Spring could be reversed as the new regime becomes as intolerant of dissent as its predecessor

The Arab Spring reversed

Tunisian protesters fear that a new law will whitewash corrupt businessmen and officials, but they are finding that the new regime is becoming as intolerant of dissent as its predecessor
King Arthur: Legendary figure was real and lived most of his life in Strathclyde, academic claims

Academic claims King Arthur was real - and reveals where he lived

Dr Andrew Breeze says the legendary figure did exist – but was a general, not a king
Earth has 'lost more than half its trees' since humans first started cutting them down

Axe-wielding Man fells half the world’s trees – leaving us just 422 each

However, the number of trees may be eight times higher than previously thought
Theme parks continue to draw in thrill-seekers despite the risks - so why are we so addicted?

Why are we addicted to theme parks?

Now that Banksy has unveiled his own dystopian version, Christopher Beanland considers the ups and downs of our endless quest for amusement
Tourism in Iran: The country will soon be opening up again after years of isolation

Iran is opening up again to tourists

After years of isolation, Iran is reopening its embassies abroad. Soon, there'll be the chance for the adventurous to holiday there
10 best PS4 games

10 best PS4 games

Can’t wait for the new round of blockbusters due out this autumn? We played through last year’s offering
Transfer window: Ten things we learnt

Ten things we learnt from the transfer window

Record-breaking spending shows FFP restraint no longer applies
Migrant crisis: UN official Philippe Douste-Blazy reveals the harrowing sights he encountered among refugees arriving on Lampedusa

‘Can we really just turn away?’

Dead bodies, men drowning, women miscarrying – a senior UN figure on the horrors he has witnessed among migrants arriving on Lampedusa, and urges politicians not to underestimate our caring nature
Nine of Syria and Iraq's 10 world heritage sites are in danger as Isis ravages centuries of history

Nine of Syria and Iraq's 10 world heritage sites are in danger...

... and not just because of Isis vandalism
Girl on a Plane: An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack

Girl on a Plane

An exclusive extract of the novelisation inspired by the 1970 Palestinian fighters hijack
Why Frederick Forsyth's spying days could spell disaster for today's journalists

Why Frederick Forsyth's spying days could spell disaster for today's journalists

The author of 'The Day of the Jackal' has revealed he spied for MI6 while a foreign correspondent
Markus Persson: If being that rich is so bad, why not just give it all away?

That's a bit rich

The billionaire inventor of computer game Minecraft says he is bored, lonely and isolated by his vast wealth. If it’s that bad, says Simon Kelner, why not just give it all away?
Euro 2016: Chris Coleman on course to end half a century of hurt for Wales

Coleman on course to end half a century of hurt for Wales

Wales last qualified for major tournament in 1958 but after several near misses the current crop can book place at Euro 2016 and end all the indifference