Reform of Legal Aid in England

The responses received by the Government on this matter came from lucrative and non-profit organisations as well as legal practitioners. The main point which was raised was about the importance of a face-to-face contact with the person. Imposing a single telephone gateway may be a hurdle for some people trying to seek legal aid because of the difficulties they may endure when using a telephone based service.

The consultation response included some examples like people who do not have access to a telephone, or people with low communication skills or poor level of literacy or problems where the adviser would need to see some documentation to be able to give effective advice. In their response to the Ministry of Justice, the Inner Temple Bar Liaison (BLC) Committee added that it would be ‘discriminatory and unlawful as it discriminates against those unable to use the telephone (or other technologies) through disability e. g. deaf people’.

Moreover, the BLC takes the view that the proposal to put in place a helpline may be a further option for the client but should not be the only way to have access to legal aid. The BLC thinks ‘very strongly this proposal goes against the theme of access to justice’. Moreover, in their response, the Equality and Human Rights Commission (EHRC) said that this system could extent to a breach of Article 6(1) of the European Convention on Human Rights (ECHR) taken in conjunction with Article 14 of the ECHR concerning the enjoyment of rights under the Convention without discrimination on any ground.

Moreover, it was added that the proposal is not in conformity with Article 5 of the Convention on the Rights of Persons with Disabilities (CRPD) read with Article 13, regarding access to justice. The respondents to this proposal showed concern about the impact that the establishment of this system would have on the legal aid advice services market. Indeed, many face-to-face advisers responded, affirming that it would have significant drawbacks on their income and future sustainability.

This matter would have as long-term consequence, the reduction of face-to-face advice providers for the clients who need them. According to the EHRC, this consequence would also have impact on not-for-profit organisations which will accordingly have a negative outcome on access to justice. For instance, the law society gazette published an article which points out a figure taken from the Impact Assessment document published with the Government’s green paper which states that law firms will lose 75% of their ‘legal help’ work as well as not-for-profit organisations which should lose 85%. [3]

Another issue which was raised was the quality of the diagnosis and the screening which would be done by the first operator, before the second operator deals with the client’s problem. Many respondents brought up issues about the level of training and accreditation that the operators would be required to meet to qualify for this duty. If the level of training is poor, this could lead to risks of professional negligence and claims against the state. Additionally the screening process would be very difficult on a telephone service, especially one which requires the collection of sensible information.

It would be very difficult for the operators to effectively and accurately collect simple information like the identity of the caller, checking if the caller is acting under duress in cases of domestic abuse, identifying if there are several problems or merely checking if there are any conflicts of interests. Another key issue which would be difficult to determine over the phone, is the financial eligibility since, it is one of the major requirements to benefit from legal aid. Therefore, this telephone service may cause many practical problems.

One of the wider aims given by the Lord Chancellor, Kenneth Clarke, in his ministerial foreword, was to make a system which would be more responsive. However, the proposal to establish this telephone helpline raised concern about the problems which may follow an increase of the bureaucracy and also delays in assisting clients. These evils may be hard to deal with, particularly in situations where the client needs assistance emergently. Some respondents asked if the infrastructure of the system would be able to work efficaciously for the probable increasing demand for the service.

For example, respondents asked whether the system would be able to handle properly the important amount of calls it will receive. This factor has to be anticipated as this system will be the only mandatory gateway to have access to legal aid. Therefore, to avoid cases where people being in emergency situations would be asked to wait, the respondents gave a list of cases which should be considered as priority cases. If a client finds himself in one of these cases, he will not need to go through the system to immediately have access to legal aid.

Examples of these cases are situations where there is a risk of harm to the individual such as domestic violence or cases where legal representation would be necessary. To bend the rules in situations like these would be essential to have system which would be truly responsive. One of the major aims stated by the Lord Chancellor concerns the funding. He expressed an urgent need of cutting costs to be able to reserve funding for serious issues which would need legal representation.

The establishment of this telephone helpline and that previous statement are therefore mutually contradictory. Indeed, many respondents were fretful concerning the estimated savings published in the Impact Assessment document because they thought these were overstated. Such a system would, over time, become a liability as it would amount to unnecessary additional expenditure. As an illustration, many respondents used the scenario where a client who was at first stage advised by an operator, would have afterwards to consult a face-to-face provider to solve his issues.

This clearly shows that the telephone helpline would be economically ineffective on a long term basis. The consultation paper published by the Ministry of Justice in 2009 is very mixt. There are numerous elements which have for objective to promote access to justice but also limit expenditures to have a sustainable service. One of the elements appreciated by many respondents in this consultation is the proposal to put in place a new set of expert fees which would allow limiting costs, without putting access to justice in danger.

However there are many elements such as the establishment of a telephone helpline which were disapproved by respondents. The Government has decided to launch this system in four areas of the law while taking some exceptions into account when the case is an emergency or the client is either a child or in detention. Overall, this consultation paper was much criticised and only a few elements which were already present in the system were approved. Therefore, the Ministry of Justice has consecrated an annex in the consultation response towards the alternatives proposed by a few respondents.

In its response, the minister has stated that ‘these legal aid changes constitute a substantial set of very bold reforms, the overall effect of which should be to achieve significant savings whilst protecting fundamental rights of access to justice’.

Bibliography: Proposals for the Reform of Legal Aid in England and Wales Reform of Legal Aid in England and Wales: the Government Response Consultation Response from the Gloucester Law Centre Calls to rethink telephone gateway for civil legal aid, Catherine Baksi Consultation Response, Royal College of Psychiatrists