Legal Aid was introduced by the 1945 Labour Government as part of the welfare state. Access to justice was to be available to all. The Lord Chancellor proposes to replace legal aid with contingency fees (no win, no fee) for most civil claims which include compensation for road accidents, medical negligence, accidents at work, or tenants suing bad landlords. The civil legal aid budget accounts for a small proportion of the overall legal aid budget. Most civil legal aid cases are brought by individuals against companies, councils, etc. — who are backed by insurance companies — and result in compensation and legal aid costs being paid by the insurance companies.
Like the NHS, legal aid is demand-led, and that is why its cost has risen in recent years. A major reason for the increase in such litigation is claims arising from the loss of collective provision and protection under the Tories. As councils face cuts, and their ability to subsidise council housing is restricted, the condition of council housing deteriorates and more and more tenants resort to taking legal action against councils. Under-funding of hospitals increases the possibility of negligent treatment. And in an increasingly casualised labour market, employers take more and more risks with health and safety.
Despite the expansion of legally-aided litigation, the proportion of the population financially eligible for legal aid has shrunk from 80% in 1979 to 20% now. Contingency fees might open up legal remedies to people on middle incomes, but these remedies have their own costs which will not be affordable to those on low incomes or benefits. Clients will still have to pay for medical and other expert reports, court fees and insurance premiums against the possibility of losing. That is an outlay of several hundred pounds: not possible for anyone on benefit. The Law Society estimates that 20 million adults and ten million children will lose out and thereby lose access to justice.
The Government laid the ground for these proposals with attacks on “fat cat” lawyers. There are certainly many highly paid lawyers: very few of these make their money from legal aid. As a thin cat lawyer, I regard this as a wholly dishonest debate. Surely, the most fair and efficient method of recouping the excessive incomes of fat-cat lawyers (and any other fat cats, for that matter) is simply to tax it at a higher rate!
These proposals do not come from Labour Party members. Year after year, Party Conference, with leadership support, has passed motions calling for an expansion of legal aid. No motion has ever been passed calling for the abolition of legal aid.
The spectre of Treasury-led ‘welfare reform’ looms over all areas of government spending, with the notable exception of defence. In health, education, social security and now legal rights, the Government’s policy is to encourage individuals to take out private insurance rather than to expand collective universal provision. Millions simply cannot afford the supposed safety-net of insurance policies, and millions who can afford it will find it a burden that makes them reluctant to pursue legitimate claims through the courts.
The Lord Chancellor’s proposals will profoundly compromise access to justice in this country. They are part and parcel of the Blair circle’s attempt to redefine the boundaries of social (as opposed to individual) responsibility as justification for the ‘rationing’ of essential services — and in the case of the legal service, that means human rights.