Leading Article: For the sake of justice, Irvine should think again

Related Topics
The promise of legal aid was that access to justice should be a real possibility for everybody, regardless of wealth. The system of tax-funded assistance was founded in 1949 alongside the National Health Service as part of the concept of the welfare state. Like other parts of that settlement, it is in urgent need of reform, and the Government is to be congratulated on its speed and radicalism in approaching that task.

Momentous reforms to legal aid have been proposed by Lord Irvine, the Lord Chancellor, to come into effect later this year. So far, they have been subjected to dangerously little debate outside the self-interested ranks of lawyers. But two aspects of the reforms are seriously flawed and should be opposed by all potential users of the courts and all who benefit from the rule of law.

First, let us praise Lord Irvine for his analysis of the problem and his boldness in setting out the principles of reform. There is no doubt that legal aid has not been working well for some time and has recently run out of control. The figures quoted by the Prime Minister's former pupil-master are eloquent. Spending has doubled in the past six years, the number of people eligible for legal aid has nearly halved, the number of cases funded is now falling and the average cost of each case has nearly doubled. As Lord Irvine said last month, on behalf of the taxpayer: "We are paying more and getting less."

The parallel with other parts of the welfare state is striking. Legal aid is a playground of perverse incentives. Lawyers have an incentive to fight hopeless cases and to spin them out for as long as possible. The system is close to becoming a ghetto service for the very poor, making access to justice most difficult for the vast majority of people on middle incomes.

The Government was right to act, and to act quickly. It is right to move to the use of fixed-price contracts for legal-aid lawyers, so that they have an incentive to use court time efficiently. It is right to give the go-ahead to the Woolf reforms designed to give judges more control over the use of court time generally. It is right that the relatively fast and simple small-claims procedure should be extended to claims up to pounds 5,000.

And it is undeniably right that more regard should be paid to the winnability of legally-aided cases. But that is where the Government has strayed into error. Lord Irvine says that most legal aid cases will be replaced by a system of "no win, no fee". Instead of getting money from the taxpayer to fight cases, poor people will be subsidised by lawyers, in return for a share of damages awarded. If lawyers do not win damages, they do not get paid. That will weed out frivolous cases, and give lawyers an incentive to try their hardest to win. It will make a lot of lawyers poorer, which may be a shrewd populist move, but smacks somewhat hypocritical from a barrister-led government. The legal aid budget, meanwhile, will be restricted to cases in which damages or compensation is not being sought, such as criminal cases, injunctions or judicial review.

The problem is, this will not work. That much is already clear: the start date has been pushed back, the promised consultation process delayed. Already the Government has hinted at special arrangements for some categories of cases. As we report today, many cases of medical negligence can be hugely expensive before they get to court. It can cost thousands of pounds for expert reports simply to establish whether there is a case.

Under a "no win, no fee" system, the loser in a court case still has to pay the winner's costs. Lord Irvine argues that lawyers should insure themselves against these costs, but that will be a business decision about risk and complexity - not about justice. The Government's second mistake has been to extend the problem of winnability to civil cases not involving claims for money, saying that legal aid will only be granted in cases which have a 75 per cent chance of success - a spuriously precise measurement which will be made by a barrister, checked by the Legal Aid Board and subject to comment by the trial judge.

It should be immediately obvious that a case's chance of success is a highly subjective judgement at the mercy of the inevitable element of lottery in the law. In a rational legal system, all cases which go to court should have, roughly, a 50 per cent chance of succeeding, as all others will have been settled out of court. And yet ... who would have estimated the Guildford Four's chance of overturning their verdict at 75 per cent? In his speech in the House of Lords last month, Lord Irvine lavished praise on the brave, public-spirited lawyers who have fought against miscarriages of justice, and promised his reforms would not inhibit them. If he means it, he will have to think again.

React Now

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

Recruitment Genius: Chiropractic Assistant

£16500 per annum: Recruitment Genius: A Chiropractic Assistant is needed in a ...

Recruitment Genius: Digital Account Executive - Midlands

£18000 - £26000 per annum: Recruitment Genius: They work with major vehicle ma...

Recruitment Genius: Web Developer

£28000 - £30000 per annum: Recruitment Genius: This company provides coaching ...

Ashdown Group: Front-End UI Application Developer

£30000 - £40000 per annum + Benefits: Ashdown Group: Front-End UI Application ...

Day In a Page

Read Next

Errors & Omissions: how to spell BBQ and other linguistic irregularities

Guy Keleny

South Africa's race problem is less between black and white than between poor blacks and immigrants from sub-Saharan Africa

John Carlin
Timeless drama of Championship race in league of its own - Michael Calvin

Michael Calvin's Last Word

Timeless drama of Championship race in league of its own
Where the spooks get their coffee fix: The busiest Starbucks in the US is also the most secretive

The secret CIA Starbucks

The coffee shop is deep inside the agency's forested Virginia compound
Revealed: How the Establishment closed ranks over fallout from Loch Ness Monster 'sighting'

How the Establishment closed ranks over fallout from Nessie 'sighting'

The Natural History Museum's chief scientist was dismissed for declaring he had found the monster
One million Britons using food banks, according to Trussell Trust

One million Britons using food banks

Huge surge in number of families dependent on emergency food aid
Excavation at Italian cafe to fix rising damp unearths 2,500 years of history in 3,000 amazing objects

2,500 years of history in 3,000 amazing objects

Excavation at Italian cafe to fix rising damp unearths trove
The Hubble Space Telescope's amazing journey, 25 years on

The Hubble Space Telescope's amazing journey 25 years on

The space telescope was seen as a costly flop on its first release
Did Conservative peer Lord Ashcroft quit the House of Lords to become a non-dom?

Did Lord Ashcroft quit the House of Lords to become a non-dom?

A document seen by The Independent shows that a week after he resigned from the Lords he sold 350,000 shares in an American company - netting him $11.2m
Apple's ethnic emojis are being used to make racist comments on social media

Ethnic emojis used in racist comments

They were intended to promote harmony, but have achieved the opposite
Sir Kenneth Branagh interview: 'My bones are in the theatre'

Sir Kenneth Branagh: 'My bones are in the theatre'

The actor-turned-director’s new company will stage five plays from October – including works by Shakespeare and John Osborne
The sloth is now the face (and furry body) of three big advertising campaigns

The sloth is the face of three ad campaigns

Priya Elan discovers why slow and sleepy wins the race for brands in need of a new image
How to run a restaurant: As two newbies discovered, there's more to it than good food

How to run a restaurant

As two newbies discovered, there's more to it than good food
Record Store Day: Remembering an era when buying and selling discs were labours of love

Record Store Day: The vinyl countdown

For Lois Pryce, working in a record shop was a dream job - until the bean counters ruined it
Usher, Mary J Blige and Will.i.am to give free concert as part of the Global Poverty Project

Mary J Blige and Will.i.am to give free concert

The concert in Washington is part of the Global Citizen project, which aims to encourage young people to donate to charity
10 best tote bags

Accessorise with a stylish shopper this spring: 10 best tote bags

We find carriers with room for all your essentials (and a bit more)
Paul Scholes column: I hear Manchester City are closing on Pep Guardiola for next summer – but I'd also love to see Jürgen Klopp managing in England

Paul Scholes column

I hear Manchester City are closing on Pep Guardiola for next summer – but I'd also love to see Jürgen Klopp managing in England