Justice for all? Why Part 2 of the Legal Aid Bill needs to chan

Jeremy BeechamLord Jeremy Beecham speaks from Labour’s frontbench on the Legal Aid, Sentencing and Punishment of Offenders Bill, and DCLG matters, in the House of Lords.

In addition to undermining the NHS through the Health and Social Care Bill and refashioning welfare benefits at the expense of the most vulnerable and the working poor, the Government is effectively demolishing the third pillar of the post-war welfare state by drastically reducing access to justice.

Electing to slash civil legal aid and advice by £280m (around 30% of the budget, compared to 8% of the criminal legal aid budget) they will deprive around 650,000 people, and their dependents, of critical support over a wide range of legal problems, from much of family law, to employment, welfare benefits education law, and much more besides. And the evidence is that while these cuts may lower the Ministry of Justice’s legal aid budget it will add to the costs of other departments and to local government, potentially wiping out the alleged savings and even costing the public purse more.

But it’s not just the poorest who will suffer from the Government’s selective implementation of Lord Justice Jackson’s review of civil  litigation.  Jackson’s proposals, themselves controversial, were predicated on the demand that neither the scope of, nor the eligibility for, legal aid would be changed. This the Government has rejected. So the Jackson changes to the funding of civil law cases, in addition to affecting those who would hitherto have received legal aid, will now also affect people of modest means who would have been above the financial limits for the latter but were able to have access to justice through conditional fee agreements. 

At the moment claimants can bring cases under agreements which provide a success fee for their lawyers, paid by the losing defendant, and cover the risk of having to pay the defendant’s costs in losing cases through after the event insurance which is paid for by losing defendants.  The success fees encourage lawyers to take on riskier cases, on the swings and roundabouts principle.
Under the Bill, success fees will be paid out of the successful claimants’ damages, with a limit of 25% of  general damages (i.e. in an injury claim damages for pain and suffering and future financial loss), and the insurance will also be paid by the claimant.

In addition, under the proposal for “qualified one way cost shifting” (QOCS) in personal injury cases, claimants won’t have to pay the cost of defendants if they lose. The perverse effects of these proposals mean  that successful claimants lose a chunk of their damages, successful defendants lose under QOCS, and the people who gain are unsuccessful claimants and defendants, since the latter no longer have to pay success fees or after the event insurance. 

The people who will pay more under the Government’s changes and risk losing access to justice include asbestos victims, people like Milly Dowler’s family in privacy cases, and people who take a public interest case for civil liberties or to prevent environmental harm.  The people who are likely to pay less include insurance companies and the people who the courts have found responsible for causing the harm.

The Action for Justice Group analysed 69,000 cases to assess the effect of the new system.  They found that a third of cases wouldn’t have been brought.  That would cost the NHS £93m in unrecoverable treatment costs, and the DWP £36m in unrecovered benefits.  If the Government continue with the proposal to exclude insolvency claims it would cost the Treasury £200m, giving a total loss greater than the (questionable) savings they estimate from cutting legal aid.

Of course it is reasonable to ensure that the costs of litigation are contained. More could be done to improve the efficiency of the system through rigorous case management and assessment of costs by the courts. Extending QOCS to all cases would promote access to justice as well by, in effect, pooling the risks to be shared by unsuccessful defendants rather than depriving successful claimants of part of the compensation to which they are entitled. Instead, Ministers are going to reduce access for the legally squeezed middle, as well as the poor.

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