Legal Aid Bill Threatens Access To Justice


Second Reading of the Legal Aid Sentencing and Punishment of Offenders Bill, House of Lords, November 21st.

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/111121-0002.htm

When Lord Beveridge identified the five giant evils facing Britain, which led, in 1949, to the creation of the welfare state, it paved the way for a raft of enlightened legislation. Legal Aid was one of those measures. It was recognition that regardless of wealth that men and women of little of no means were entitled to support in seeking to put right an injustice: in assisting them to seek redress.The Legal Aid Sentencing and Punishment of Offenders Bill, which is currently before the House of Lords, represents the most substantial change to that settlement since the introduction of legal aid. It is not that all change is bad, or that Governments in times of austerity are not entitled to seek efficiencies or savings, but nor should they use a difficult economic situation as a pretext for making ill considered or inappropriate changes.

None of us are in favour of vexatious or frivolous litigation – and an ambulance chasing compensation culture can create a situation where well motivated medics can live in stress and fear that what they believed to be the right decision will end in the courts.

But, that is not the issue at stake in this Bill. This is not about harassing medics; this is about the families of patients killed as a result of clinical negligence or a victim affected by personal injury being left unable to access justice at all.

The Bill represents a huge assault on access to justice. Action Against Medical Accidents, the patients’ charity says the Government’s proposals are financially illiterate: “In order to save the Ministry of Justice just £11 million it will cost the NHS at least £14 million and possibly as much as £21 million.”

A year ago The Ministry of Justice published its own Impact Statement and documented some of the potential costs which may flow from these changes and which dent the Government’s claims that the Bill will save resources – let alone ensure access to justice. These negative outcomes included reduced social cohesion; increased criminality; reduced business and economic efficiency; and increased costs for other government Departments – notably the National Health Service.

In their third report, the House of Commons Justice Committee stated that the Government are in error in failing to undertake a comprehensive assessment of the knock-on costs arising from the cuts to legal aid. The Committee noted: ‘we are surprised that the Government is proposing to make such changes without assessing their likely impact on spending from the public purse and we call on them to do so before taking a final decision on implementation’.

Setting aside this pound-foolish approach to these reforms, I would contend that a civilised society should not attempt to ration justice or to restrict access to a narrow club whose membership is determined by economic where-with-all.

Access to justice is a central pillar of a civilised society and in every generation we must ensure anew the principle of justice for all. We must also beware turning the clock back on access to justice

It must remain one of the highest ideals of any society, perhaps its very first duty, to provide equal and unfettered access to justice regardless of economic status; it’s not a commodity to be rationed; any legal system which depends on the amount of money you have before you can seek redress foregoes the right to describe itself as just. And sadly, judged against those criteria, this Bill fails the test.

Take the example of victims of personal injury, and disturbingly, the deleterious impact which the Bill will have on claimants who have modest means.

I particularly regret that the Government did not accept amendments in the House of Commons to retain legal aid in cases of clinical negligence and have chosen to ignore significant and broad-based opposition, which includes the Judges Council and the Lord Chief Justice.

The Bar Council’s asserts that they are

“Profoundly concerned about the impact that the Bill’s proposals could have on access to justice, particularly for some of the most vulnerable members of society.”

They say that access to justice will be replaced by “do-it-yourself-justice”; that access to justice will be seen as an unaffordable luxury; that there will be a concomitant and inevitable short- and long-term decline in the availability of quality advocacy services

This point is underlined by The Law Society who say that “the Bill ensures that serious injustice will be done….Clients with physical or mental health difficulties, or low levels of education, may be unable to resolve their problems in the absence of support through legal aid.”

The provisions on legal aid in Part One of the Bill and those in part 2 of the Bill on civil litigation have accurately been described as a “double whammy” – hitting the citizen seeking justice twice over.

These concerns were underlined to me last week by Peter Walsh, the Chief Executive of the patients’ charity Action Against Medical Accidents and by Irwin Mitchell, one of the largest law firms in the UK. Acting for thousands of individuals, they told me that:

“the radical restructure of legal funding will force thousands of injured people to pay significant sums in legal fees out of their hard-won compensation. The proposals will have greatest affected cases of those which are of higher value and more complexity, precisely those which should not be subject to the regime proposed and which would see the most vulnerable hit the hardest.”

I have also been contacted by Tony Whitston of the Asbestos Victims Support Group – who vividly point out that mesothelioma sufferers

“will have to bear their share of risks by paying up to 25% of their damages for pain and suffering in legal costs.”

This should simply be unconscionable.

Eminent jurists from Lord Bingham to Hartley Shawcross – who introduced legal aid provision in 1949 – are two of those most often cited in defence of access to justice for all. Let me rely on the Greek philosopher, Thucydides, who proclaimed that “Justice will not come until those who are not injured are as indignant as those who are injured.”

For those who have contracted mesothelioma – or who are in the position of the lady who spoke with such dignity at a meeting in Parliament last week about the life which lays ahead of her in bringing up a brain damaged baby – we need to be indignant on their behalf: indignant at the prospect that recourse to law will in future be denied them; indignant that their damages may be swallowed up in meeting legal costs.

Forcing mesothelioma sufferers – whose life expectancy is nine to twelve months from diagnosis – to surrender 25% of damages – which average about £65,000 – because of austerity measures or “compensation culture” or the bad practice of some claims management companies – is cruel, unjust and unacceptable.

Take the case involving the President of the Liverpool Law Society, Mr.Norman Jones: one which ended in the Supreme Court. Hugely significant in the development of the common law concerning mesothelioma, the judgement has given hope to many thousands of asbestos victims who probably would not been entitled to compensation had the Supreme Court Appeal by the Defendants not been dismissed.

The Judgement in Sienkiewicz and Grief (UK) Ltd was given in the Supreme Court on March 2011. Mr. Jones handled the action under a Conditional Fee Agreement. There were CFAs for the County Court proceedings, The Court of Appeal and the Supreme Court.

Norman Jones tells me:

“Without the 100% success fee payable under the CFAs the risks of handling this case would have been totally beyond my firm. Putting it bluntly had we lost my firm may have been facing bankruptcy!!! “

So it is not only the claimant who will suffer; so will many of their representatives.

Small practices, single-handed solicitors, operating in disadvantaged cities and regions are likely to be the most disadvantaged by these proposals.

Donal Bannon, the Director of the Liverpool Law Society says that “Liverpool is one of the most deprived cities in Europe and that the impact of the proposed reforms will have a disproportionate effect here.”

Last week, by way of illustration, the Society drew my attention to a case involving a claim against the St.Helens and Knowsley Teaching Hospitals NHS Trust.

It involved a long distance lorry driver. He died of lung cancer after a mistake was made over his diagnosis. A settlement was made with his widow after the commissioning of significant expert’s fees. Under the new regime the Law Society say the client “would not have been in a position to fund any disbursements to enable an investigation to be taken forward.”

The removal of legal aid for victims of clinical negligence will simply mean that many who have valid claims will be unable to seek legal redress. It’s as straightforward as that.

I asked the Liverpool Law Society for more examples and they have sent me several others.

They include a vicious-circle case involving an unemployed drug addict, where no one is willing to bear cost liability for an expert witness and they include children’s cases “that would simply be out of the reach of anyone but the very rich without public funding…the idea that mediation can resolve all these matters Is delusional”.

One of their member solicitors says: “If we want a society where only the rich can litigate then we are certainly heading in the right direction.”

Another lawyer points to the way in which the changes will lead to victims losing a significant proportion of their damages; such that they become a “victim” twice over. Why should they have to use their compensation to pay fees? Invariably they need every penny they receive in order to reconstruct their lives. Without such funds costs I can easily anticipate that the State will have to make up the short-falls for compensation which is often needed for adaptations to homes or costs of carers.

That is manifestly unfair, and wrong. The purpose of damages is to put the Claimant back into the position they would have been in but for the accident as far as is reasonably possible. The proposals will mean that that long established underlying principle is no longer upheld.

Lawyers will also enter into bidding wars to offer the lowest success fee to get the work; there will be a reduction in standards as profit margins become squeezed.

Already, pressure is increasingly to do the work as cheaply as possible. Ironically this will no doubt in due course lead to a rise in professional negligence litigation.

It is inevitable that in the future, cases that are higher risk will be rejected, not on merit, but simply because there are not the margins to fund them.

More generally, I understand that there are about 900,000 medical accidents in the NHS each year – and that less than 9% result in claims. Most are settled long before they come to Court.

Many practitioners fear that uncertainty over costs will mean that lawyers will, in future, simply be unable to assure a client that they will not end up with a huge personal legal bill. In the past lawyers could say “you don’t have to worry.” But, in future they will not be able to say that to clients because they will have to worry.

Irwin Mitchell estimate 70% of clients will simply not risk making a claim. Not only will this deny justice but it will have a damaging effect on the NHS – because the failure to bring genuine cases will mean that lessons will not be learnt and mistakes will be repeated.

The effect of “the double whammy” emerges again in Part 2 of the Bill.

Here, the Government have justified their proposals by claiming to implement Lord Justice Jackson’s review of civil litigation but, like the curate’s egg, it’s only there in parts. The Bar Council says “The Bill’s civil litigation provisions have been cherry-picked from Lord Justice Jackson’s wide-ranging recommendations. “

For instance, Lord Justice Jackson stressed the importance of making no further cuts to the availability of legal aid – specifically in the case of medical negligence:

“I stress the vital necessity of making no further cutbacks in Legal Aid availability or eligibility …… the maintenance of Legal Aid at no less than present levels makes sound sense and is in the public interest…On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate.”

Lord Justice Jackson has been used to justify capping the amount of any success fees and removing the recoverability of both success fees and after the event insurance premiums from unsuccessful defendants.

Since 2000, and the abolition of legal aid for normal personal injury cases, claimants’ lawyers have relied upon the receipt of success fees in cases which are won in order to fund their work on the cases which are lost.

By shifting the cost of civil litigation onto successful claimants, it will severely limit access to justice for the great majority of those who have suffered injuries and who cannot afford to fund their own litigation, let alone to take the risk of losing and having to pay their own legal costs, and those of the other side.

Even in the most distressing or self-evidently genuine cases, establishing whether a victim of clinical negligence has a legitimate case to pursue, involves interpreting complex medical reports and witness statements. No win, no fee lawyers are unlikely to be willing to undertake this intricate work without payment.

The Bar Council says:

“The net effect of these reforms will be to deter claimant lawyers from taking on many worthy cases, on a no win, no fee basis, thus (in the absence of legal aid) severely limiting access to justice for those who cannot afford to fund their claims themselves.”

It is hard to believe that the Government understands how important the success fee is and why it exists.

If we enact the Government’s current proposals, the returns from the successful cases are likely to be reduced by up to 75%. Inevitably, lawyers will only be able to take on cases which are obvious winners, shutting out large numbers of claimants who have good but complex cases. They will end up having to represent themselves or bring no claim.

Is that what we mean by justice for all?

Yet there are lawyers out there who have suggested to the Government that they give back to the Legal Aid fund 10% of the fees that they recover from defendants when they are successful in recovering compensation for their clients. Such a scheme would raise £6 Million per year and meet more than a third of the current spend on legal aid
for clinical negligence each year. Yet that proposal I am told has been completely ignored as too have other cost saving proposals.

In addition to those who have suffered from personal injury, such as clinical negligence, other vulnerable groups will also suffer. Take children:

The Children’s Society – who work with over 50,000 children a year – say:

“We are concerned that the changes will affect the poorest and most vulnerable families, including children, who will suffer as a knock on effect of limited access to justice for their parents or carers for reasons such as parental disability, language barriers, poverty and mental health issues.”

It’s the Government’s contention that “As far as possible, our intention is that, where children are involved, legal aid will still be provided.”

Yet, The Children’s Society estimate that just over 4,000 cases for under-18s will be excluded from scope and will not receive exceptional funding.

Around 2,500 of the excluded cases relate to immigration matters which will have a detrimental impact on children who may have been victims of trafficking or have been abused, neglected or exploited by their carers.

The Children’s Society estimate that at least 58% of all education cases will also be out of scope. This includes cases regarding bullying, exclusions and admissions. In exclusion cases, Traveller, Gypsy and Roma children – who are five times more likely to be excluded from school than the national average9 – would be disproportionately affected by the elimination of legal aid for education cases.

Given children’s fundamentally different needs and vulnerabilities compared with those of adults, the Minister needs to adumbrate the Government’s approach to the exceptional funding scheme and the criteria by which applications will be assessed. It might give some comfort if, in the light of the Government’s declared commitment to the United Nations Convention on the Rights of the Child, if, before this Bill is enacted, he would at least ask his officials to undertake an impact assessment of the proposed legal aid reforms on children’s rights.

The Bar Council tell me that 68,000 children and young people will be affected by the withdrawal of legal aid and that 54,000 fewer people represented annually in the family courts.

Perversely, they point out that the removal of private family law from the scope of legal aid could cost the taxpayer more not less and that courts will become congested with litigants representing themselves.

I am a patron of The National Association of Child Contact Centres which over the past year have worked with 9,013 families 15,579 children and delivered over 30,000 hours of contact. Many of them do a wonderful job in helping families to settle their differences and move on, without the courts or lawyers being involved.

However, they have flagged up their concern that this Bill will result in the number of self-referrals which they will have to deal with: many will be inappropriate and beyond their mandate or capacity to deal with.

They say: “This in turn creates extra work in terms of gathering information, assessing that information and then arranging, monitoring and reviewing contacts. To make matters worse all of this is happening at a time when many of our Centres are already dealing with record numbers of referrals and managing ever increasing waiting lists to access their services.”

The prospect is already having a disastrous impact. They cite one coordinator who left a centre in Norfolk recently and who said “I am a volunteer – the amount of work and the level of responsibility that goes with it is now simply too much”. The centre had been running for 15 years but has closed because no one else was prepared to take on the role of coordinator.

Then there is the question of domestic violence.

The Government recently promulgated its “Call to End Violence against Women and Girls.” If the words mean what they say it behoves the Government to look again at the extraordinarily narrow criteria under which a person who has suffered domestic abuse can qualify for legal aid and to adopt the definition of domestic abuse used by the Association of Chief Police Officers and the Home Office – crisper, clearer and better defined than the words on the face of the Bill, words which may well shut out the abused from justice.

And it is not merely our own citizens who will be denied access to justice.

The Bill’s will also have a negative impact on access to justice via civil litigation for poor victims of egregious corporate human rights abuses: people living in remote places and in developing countries, and who in some exceptional cases have hitherto been able to bring actions against multinationals in our courts . Organisations such as Amnesty, CAFOD and Oxfam say that under the new dispensation “it would be virtually impossible for such cases to be brought in future”

Whether it is a remote indigenous people living in a rain forest, seeking redress against a British company, or the mother of a brain damaged baby, a victim of domestic violence or abuse, or a man dying of mesothelioma, the same principle of being able to seek the righting of a wrong must apply.

As the Bill currently stands it will significantly further restrict the scope of civil legal aid; it could leave the United Kingdom in breach of our human rights obligations; it may well crate a chaotic situation in our courts; put conditional fee arrangements out of the reach of most people; and save a lot less than the Government has speculated.

Above all, the Legal Aid Sentencing and Punishment of Offenders Bill is a Bill which fails the ultimate test: does it ensure access to justice regardless of wealth or means? Clearly, the answer is no. There can be no talk of equal access to justice if it is becomes dependent on the amount of money a person has.

At best, this is a this is a classic Bill of Unintended Consequences; at worst, it is a Bill whose consequences are all too well understood by those who have laid it before Parliament. It is a Bill which should not be allowed to pass through the House of Lords without significant amendment.

Full Debate in The House:

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/111121-0002.htm

Speech in the House:8.58 pm
Lord Alton of Liverpool: My Lords, it must surely remain one of the highest ideals of any society, perhaps its very first duty, to provide equal and unfettered access to justice regardless of economic status. Justice is not a commodity to be rationed. Any legal system which depends on the amount of money that you have

21 Nov 2011 : Column 905

before you can seek redress forgoes the right to describe itself as just. Sadly, unless this Bill is significantly amended along the lines suggested by my noble friend Lord Pannick and by many others in your Lordships’ House today, these proposals will be judged as a huge assault on access to justice.
Specifically, I want to speak about the changes to legal aid and to success fees, and the deleterious impact which these changes will have on victims of personal injury and on claimants who have modest means. I particularly regret that the Government did not accept amendments in another place to retain legal aid in cases of clinical negligence and have chosen to ignore significant and broad-based opposition, which includes the Judges’ Council and the Lord Chief Justice.
I take as my starting point the Bar Council’s assertion that it is profoundly concerned about the impact that the Bill’s proposals could have on access to justice, particularly for some of the most vulnerable members of society. It says that access to justice will be replaced by do-it-yourself justice; that access to justice will be seen as an unaffordable luxury; that there will be a concomitant and inevitable short and long-term decline in the availability of quality advocacy services. That point is underlined by the Law Society, which says that the Bill ensures that serious injustice will be done and that clients with physical or mental health difficulties or low levels of education may be unable to resolve their problems in the absence of support through legal aid.
Take the specific example highlighted by Tony Whitston of the Asbestos Victim Support Group, who vividly points out that mesothelioma sufferers will have to bear their share of risks by paying up to 25 per cent of their damages for pain and suffering in legal costs. That should be simply be unconscionable. Many learned jurists from Lord Bingham to Hartley Shawcross have been quoted in our debates today. Let me rely instead on the Greek philosopher, Thucydides, who proclaimed:
“Justice will not come . . . until those who are not injured are as indignant as those who are injured.”
For those who have contracted mesothelioma, or who are in the position of the lady who spoke with such dignity at a meeting here last week about the life which lies ahead of her in bringing up a brain-damaged baby, we in this House need to be indignant on their behalf; indignant at the prospect that recourse to law will in future be denied them; indignant that their damages may be swallowed up in meeting legal costs. Forcing mesothelioma sufferers-many of us who have been constituency Members of Parliament will have met victims, whose life expectancy is nine to 12 months from diagnosis-to surrender as much as 25 per cent of damages, which average about £65,000, because of austerity measures or charges of ambulance-chasing or compensation culture or the bad practice of some claims management companies, is cruel and unjust.
I would particularly like to draw the attention of the House to a case involving the president of the Liverpool Law Society, Mr Norman Jones; a case which ended in the Supreme Court and is known to the noble Lord, Lord Bach. Hugely significant in the development of the common law concerning mesothelioma, the judgment has given hope to many thousands of asbestos victims

21 Nov 2011 : Column 906

who probably would not be entitled to compensation had the Supreme Court appeal by the defendants not been dismissed.
The judgment in Sienkiewicz v Greif (UK) Ltd was given in the Supreme Court in March this year. Mr. Jones handled the action under a conditional fee agreement. There were CFAs for the County Court proceedings, the Court of Appeal and the Supreme Court. Norman Jones tells me that without the 100 per cent success fee payable under the CFAs, the risks of the handling this case would have been totally beyond his firm. Putting it bluntly, he says, had it lost, his firm may have been facing bankruptcy. It is not only the claimant who will suffer-so will many of their representatives. Small practices and single-handed solicitors working in disadvantaged cities and regions are likely to be the most badly affected by these proposals.
Donal Bannon, the director of the Liverpool Law Society says that Liverpool is one of the most deprived cities in Europe and that the impact of the proposed reforms will have a disproportionate effect there. I asked the Liverpool Law Society for more examples and it sent me several. They include a medical negligence case, a vicious-circle case involving an unemployed drug addict, where no one is willing to bear cost liability for an expert witness, and children’s cases that they say would simply be out of the reach of anyone but the very rich without public funding. It says that the idea that mediation can resolve all these matters is delusional. One of its member solicitors says that if we want a society where only the rich can litigate, then we are certainly heading in the right direction.
This is why the Bill represents a huge assault on access to justice. Lord Justice Jackson stressed the importance of making no further cuts to the availability of legal aid, specifically in the case of medical negligence. He stressed,
“the vital necessity of making no further cutbacks in legal aid availability or eligibility … the maintenance of legal aid at no less than present levels makes sound . . . sense and is in the public interest … On the assumption that it is decided not to maintain civil legal aid at present levels, the question may possibly arise as to whether any particular area of civil legal aid is particularly important and should be salvaged from the present cuts. My answer to that question is that of all the proposed cutbacks in legal aid, the removal of legal aid from clinical negligence is the most unfortunate”.
If we are right to be indignant about the removal of legal aid in cases of personal injury, spare a thought, too, for the impact of the Bill on children. The Bar Council says that 68,000 children and young people will be affected by the withdrawal of legal aid and that 54,000 fewer people will be legally represented annually in the family courts. The Children’s Society, which works with more than 50,000 children a year, bears this out. It says that it is concerned that the changes will affect the poorest and most vulnerable families, including,
“children who will suffer as a knock on effect of limited access to justice for their parents or carers”,
for reasons such as,
“parental disability, language barriers, poverty and mental health issues”.

I have a non-pecuniary interest as patron of the National Association of Child Contact Centres which, over the past year, hasworked with more than 9,000

21 Nov 2011 : Column 907

families 15,000 children and delivered 30,000 hours of contact. Many of those who work in the centres do a wonderful job in helping families to settle their differences and move on, without the courts or lawyers being involved-something of which I know the Government would approve. However, NACCC has flagged up its concern that this Bill will result in a big increase in the number of self-referrals that it will have to deal with: It says that many will be inappropriate and beyond its mandate, resources or its capacity. It says:
“This in turn creates extra work in terms of gathering information, assessing that information and then arranging, monitoring and reviewing contacts. To make matters worse, all of this is happening at a time when many of our Centres are already dealing with record numbers of referrals and managing ever increasing waiting lists to access their services”.
The prospect is already having a disastrous impact. NACCC cites one co-ordinator who left a centre in Norfolk recently and who said, “I am a volunteer-the amount of work and the level of responsibility that goes with it is now simply too much”.The centre had been running for 15 years but has closed because no one else was prepared to take on that role of co-ordinator.
Whether it is a victim of domestic violence or abuse about which we have rightly heard a great deal today, the position of a remote indigenous people living in a rainforest seeking redress against a British company, the mother of a brain-damaged baby or a man dying of mesothelioma, the same principle of being able to seek the righting of a wrong must apply.
As the Bill currently stands, it will significantly further restrict the scope of legal aid, it could leave the United Kingdom in breach of our human rights obligations, it may well create a chaotic situation in our courts, put conditional fee arrangements out of the reach of most people and save a lot less than the Government have speculated. Above all, Parts 1 and 2 of the Bill fail the ultimate test: does the Bill ensure access to justice regardless of wealth or means? Clearly, the answer is no. There can be no talk of equal access to justice if it is becomes dependent on the amount of money a person has. It is about that that this House should be indignant.
9.08 pm

One thought on “Legal Aid Bill Threatens Access To Justice

  1. The Committee raises concerns that the Bill would allow the newly created Director of Legal Aid to determine whether an individual qualifies for free legal advice when held in police custody. They point out that the Supreme Court recently observed that an individual in police custody has the right not just to legal advice, but to free legal advice.

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