Thursday, 18 November 2010

Legal Aid Reform: reactions to government proposals

‘Mediation is a complement to justice. It cannot ever be a substitute for justice.’

The government has launched its consultations on reform to legal aid and costs in civil litigation - see  Ministry of Justice.  The Law Society Gazette (18th November) states a view that the very principle of legal aid is now on trial.  A further article claims that legal aid is facing devastation - see here.  The government's proposals are severe and, some would say, brutal given that many areas of legal concern to thousands of families will be removed altogether from legal aid.  To quote from the Gazette article:

"The categories proposed to be cut from the legal aid scheme are: private law children and family cases where domestic violence is not present; education; immigration where the individual is not detained; clinical negligence; ancillary relief cases where domestic violence is not present; employment; welfare benefits; debt matters where the client’s home is not at immediate risk; consumer and general contract; Upper Tribunal appeals; tort claims; legal help for Criminal Injuries Compensation Authority applications; and some housing matters."

Underlying some of the government's thinking is a view that alternatives to court proceedings ought to be used - (e.g. see speech by Jonathan Djanogly 18th November).  Such "alternative dispute resolution" (ADR) processes have their place - usually as a complement to going to court.  However, for numerous reasons, ADR may not work and, very often, appropriate services are not readily available and are not necessarily as cheap as some appear to think.  It would also be elementary economics to suggest that if there is greater demand for such services the costs will rise.

The Gazette also reports Lord Neuberger - the Master of the Rolls - as stating:

‘If we expand mediation beyond its proper limits as a complement to justice, we run the risk of depriving particular persons or classes of person of their right to equal and impartial justice under the law.’

Combining the cuts to legal aid with other reforms coming under the Legal Services Act 2007 makes for an exceptionally uncertain future for not only the legal profession but also for access to justice generally for the vast majority of the population who are not lawyers.

Lawyer Watch is the blog of Professor Richard Moorhouse - Professor of Law at Cardiff University.  He has published some thoughts on the legal aid cuts and makes the very pertinent point that solving some problems at an early stage can prevent more serious issues later.  Please read his article here.

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