More Justice, at a Better Price; the Lord Chancellor Replies to Critics of His Reforms of Legal Aid
Irvine, Alexander Andrew Mackay, New Statesman (1996)
My radical plans for modernising civil justice have been attacked as cost-cutting surgery, with the sharpest knife honed for the poor. Nothing could be more wrong.
Everyone attacks the civil justice system. It is too expensive. Its cost is out of control. It is delivering less. But for me, those are just symptoms. The real sickness is suffered by people who need legal help but cannot afford it. The real sickness is blighted lives and the undermining of civil society as confidence in justice is eroded. To reverse those historical trends I need to do two things.
One is to make legal help affordable to people on middle incomes who do not qualify for legal aid. The other is to transform legal aid so that it buys as much help as it can for the less well-off.
Making justice affordable simply involves the determination to modernise, by extending no-win, no-fee arrangements to all civil proceedings except family cases. At a stroke, legal help would become affordable in disputes with banks, builders and insurance companies, provided the lawyer had sufficient confidence in the case to enter a no-win, no-fee/conditional fee agreement. Insurers are already showing interest in covering the risk of having to pay the other side's costs, to which I want to extend conditional fees.
Beyond that simple but revolutionary change, I will implement Lord Woolf's proposals for civil justice. This will reduce costs and make them more predictable, so completing a virtuous circle, because the lower and more predictable the costs, the better will conditional fees and linked insurance flourish.
The second challenge of modernising legal aid is not so easy. A heavy impediment is the entrenched interests of the legal professions. Not surprisingly, they are attached to the old regime because it is designed to cater for the idiosyncratic ways they do business and to deliver a healthy income from the taxpayer. Civil legal aid has tripled in six years to [pounds]671 million. The income enjoyed by lawyers has risen on average by 20 per cent a year over the same period. While civil legal aid continued to rise last year, there were about 13,500 fewer acts of help. That cannot go on. Down that road fewer people receive help: there will be no prospect of extending legal aid to those whose needs are not met now. So what to do?
First, because there are areas of unmet need but no extra money, legal aid should not be used where alternatives are as good or better. That is why I'm providing that those claiming damages should use no-win, no-fee arrangements rather than legal aid in most cases.
Lawyers say that poor people cannot use such arrangements because they cannot afford either the up-front costs of investigating whether the case is likely to win, or the insurance against having to pay the other side's costs if they lose. …