The Legal Aid, Sentencing and Punishment of Offenders Bill; Chris Bright QC, a Barrister at No5 Chambers, Does Some Straight Talking about the Government's Approach to Legal Aid

Article excerpt

Byline: Chris Bright

ood Summer? Holiday relaxing? Incensed by the riots? GEncouraged by events in Libya? Incidentally, did you know that the Government has been quietly dismantling the Legal Aid system? It doesn't accept that for a moment, of course. Almost everyone else, however, thinks that the 'Legal Aid, Sentencing and Punishment of Offenders Bill' ignores some basic principles of justice and democracy: that access to justice for the poor and disadvantaged is a key test of a fair society; that the 'tortfeasor' (wrongdoer) who injures someone should pay up and, that a mature, principled government should listen to reasonable responses to its 'green' (consultation) papers.

The Law Society, representing solicitors, described the Bill as "the single biggest attack on state-funded legal advice for the poor and vulnerable since the legal aid system was introduced". In his Ministerial Statement of June 21, 2011, the Lord Chancellor, Secretary of State for Justice, Ken Clarke, said that the Government is "committed to overhauling our system of civil justice", but accepted that "Legal Aid will no longer routinely be available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits".

The Bill reverses the general availability of civil legal aid, abolishes the Legal Services Commission delivering it, and provides that even winning litigants will have to pay the additional costs that lawyers and insurance companies charge for up-front legal funding.

Legal Aid will only be available for limited categories of cases "where people's life or liberty is at stake, where they are at risk of serious physical harm, or immediate loss of their home, or where their children may be taken into care".

But "most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits" will be excluded.

Claimants will have to pay success fees, the incentive for lawyers to take on 'CFAs' ('no-win, no-fee' agreements), from their damages, even when they win. And, subject to a limited concession in clinical negligence cases, the 'ATE' premiums (by which claimants insure themselves against defendants' costs), will also come from damages. The government says that it'll mitigate this by a 10 per cent increase in 'general damages' (for pain and suffering), but the figures simply don't add up.

The Bar Council, representing barristers, described these proposals as "the demolition of much of the architecture of legal aid upon which so many disadvantaged members of the public rely". Chairman, Peter Lodder QC, said: "The government has failed to listen to the views expressed by many in the judiciary, the legal profession and voluntary organisations in formulating its proposals on legal aid. Legal aid will be withdrawn for whole swathes of areas of law and access to justice will be systematically deprived". Law Society President Linda Lee said that thousands of victims of medical accidents would be denied access to justice.

But they would say that, wouldn't they? Aren't they self-interested lawyers? Hasn't the Ministry of Justice got to cut pounds 350 million? …