Access to Civil Justice in This Age of Austerity

Access to Civil legal aid and the pro-bono services were not originally expected to be as important as it is today to the welfare state. Sixty years on from when it was originally conceived as per the Legal Aid and Advice Act[1], the (LASPO) Act[2], approved by parliament in May 2012[3], will effectively turn the clock back for many members of the public who want to access civil justice. According to government statistics roughly 600,000 people will not be able to access civil legal aid[4]. It must be submitted that these changes will effect: the civil courts and procedures, legal aid services, funding and alternative dispute resolutions. Not to mention the vast criticism against the (LASPO) Act from people in the ‘frontline’ such as: Steve Hynes, Leslie Thomas, Nimrod Ben-Cnaan, Patrick Marples[5].

It must be acknowledged that the statistics supplied by Law centres have presented worrying results, at least 18 out of a possible 52 centres in England and Wales will have no alternative but to close down because 75% of their income comes from legal aid, which will cease to exist. The MoJ has already explained that the £350m[6] of cuts to civil legal aid are not due to come into force until 31 March next year, yet advice centres are already abandoning their services before the deadline. Law centres are there to help individuals who cannot afford a solicitor to obtain legal advice and support on areas such as welfare, medical negligence, employment and many other areas[7]. 

In addition, 140 million people are getting divorces; 250 million people are going to CAB with employment problems and 2 million for benefits problems[8]. Compare the applications to the cutbacks in legal aid in an adversarial country such as the UK, one can strongly argue that there will be scope for injustice as the whole is not being provided with adequate services thus it can be submitted injustices will occur, albeit in police cells whereby a person who is charged and interrogated without the aid of a solicitor may be unjustifiably accused, negating the idea of a free democracy and a system which is fair. Furthermore, proposals in government to establish proximity in police powers for discretions as to whether an individual is entitled to legal advice is under scrutiny by the Law society, the body representing solicitors and the chairman of the Bar Council has expressed: 

“The bill's proposals will cause great harm to ordinary people. We continue to make the case for access to justice in the strongest terms. There has been much public debate about sentencing. There must be a similar scrutiny of these wide-ranging proposed changes to legal aid. A cut-price, DIY justice system, which will actually end up costing more money, rather than saving it, is in no one's interests."[9]

The withdrawal of legal aid will create an automatic rise in the time consuming and money wasting area of litigants in person. Judges have held meetings in London to discuss how to cope with the expected increase in what they refer to as "self-represented litigants". A great example of this is in the McLibel case[10] this judgment was given on 15 February 2005, and represented the end of the Steel & Morris Pairs 20-year battle with McDonald's. Nonetheless there will be an increase in people being bullied into alternative dispute resolutions. The government's plans to cut back legal aid and financial support will soon disappear for most cases involving divorce, child custody, negligence in practices, employment laws, immigration and status, housing, debt, welfare benefits and education. 

It must be recognized that Steve Hynes's book demonstrates how the former justice minister Jonathan Djanogly wanted to introduce competitive tendering for criminal legal aid, yet this argument was not acknowledged by the rest during the debate and drafting stage of the Legal Aid, Sentencing and Punishment of Offenders Act, which became law this summer. Also, it is quite evident that Access to justice is likely to move back up the political agenda. An example of the detrimental effect of the cutbacks is seen by Shona Alexander, Newcastle's Citizens Advice bureau who was already denying people with issues, as the spending cutbacks could not provide.

"Our legal aid contract for both welfare benefits and debt advice ends on 31 March and will not be renewed. Legal aid funding is paid only when cases are closed, so we have to stop taking on any new, complicated cases because they will not be completed before the end of the contract. Requests for welfare benefits advice here have increased dramatically during the last few weeks, as clients are being notified of impending cuts in housing benefit and other changes. Practically every day there's a queue outside the bureau and once the waiting room is full we have to turn people away."[11]

In light of this chaos, the Ministry of Defence has established a £20m transitional fund to support the law centres and citizen advice bureaus. The cuts have threatened to undermine long and established years of pro bono work. A Law Society survey has revealed that 50% of the solicitors in private practice had done pro bono work in the 2012 year, accomplishing an average of 55 hours each, with an estimated total value of £518m[12]. But the Law Society and Bar Council have expressed that the government’s funding cuts could prevent the legal profession to continue providing pro bono assistance

On the other hand, with regards to litigants in person Judges have and are already well used to dealing with litigants in person. There is clear Evidence to show that these cases do not necessarily take longer. Yet on the flipside, it must be argued that based on the recent history of legal aid policy the Legal Action Group (LAG) is making a number of predictions about the near future. Firstly, the government will enforce their grip on fees in civil and criminal legal aid and in doing this; they will take the ultimate gamble in losing the talented and experienced professionals from that sector, which will inevitably mean more miscarriages of justice and decisions not to protect human rights.

In short it must be concluded that the Laspo Act has had a negative effect on the way legal aid is used. It has meant that people are now even more vulnerable, especially the lower class section of society. It must be submitted that the government has made a mistake because the welfare state increased after WW2 and this lead to the increase of lawyers in that field and to reverse what it has achieved in the last 60 years is a wrong move. The cutbacks are a false economy, maybe it can be argued that in the short term that government will save money but in the long term, for every £1 cut, £9 is lost down the line because more litigants in person would indicate longer hours of court service and money spent as the individual does not understand the civil court procedures. Yet, one can argue cases like the McLibel case illustrates that litigants in person are equally as successful but that is a rare opportunity and thus it can be argued is invalid. 

Lastly, by looking at the statistics between the Law offices and the Law advice centres it is clear that the Law advice centres have been used more than the Law offices and so it must be said that the pro bono services and legal aid are more important in terms of funding. Cuts to legal aid are to be bad theoretically because innocent people will be affected.

Yet, with regards to the scope of legal aid services such as – immigration, negligence in practices and so forth, there is a feeling amongst the legal professionals and within the general public that the adversarial system is just a way of turning small disputes into bigger disputes to the benefit of the lawyers. If people had to sort out their own stuff perhaps with the aid of professional conciliation they would do it far better. Below the diagrams illustrate the difference in access to civil legal advice centres and law offices, the results prove an attachment towards legal aid.