The law of unintended consequences

The government’s proposed cuts to legal aid may well serve to discourage people from bringing cases. But, writes Professor Richard Moorhead, they may also lead to a spiral in legal need that will see councils and other organisations left to pick up the pieces, and a rise in litigants in person that local authority lawyers have to deal with.

I have not had time to digest the green paper on legal aid cuts in full. My printer is low on toner. The prospect of several hundred pages of misery is just a tad too depressing. I also acknowledge that, like it or not (and I do not), it was inevitable that legal aid would face a significant cut and that, issues of timing aside, fiscal and political realities dictated that legal aid would not escape. I admit I am also tempted to admit defeat on the basis that resistance is futile. Yet, if there are to be cuts, the implications of those cuts need to be understood and there seem to me to be a few comments worth making at the outset, before I kill off my printer and wrestle with the nitty gritty.

The cuts target, in particular, areas of social welfare law where costs are relatively low, and have long been under control. More importantly, these cuts target those problems which solely or mainly afflict the poor. More importantly still, if that were possible, there is evidence that these cuts target the cluster of problems and, in particular, trigger problems which appear to lead to an acceleration of social deprivation (and more, and more serious legal problems).

There is a plausible argument that tackling these trigger problems will prevent or ameliorate future legal need and save cost. To use the lexicon of health: prevention is better than cure and it is cheaper (in the long run) too. So an employment problem leads to a debt problem, leads to a family problem, leads to a set of benefit and housing problems, leads to homelessness and so on. Often (research suggests about a third of the time) the problems on which legal aid advisers working in social welfare law advise are generated by government and governmental agencies themselves (local and national).

In one fell swoop, legal aid cuts exacerbate those problems and ‘externalise’ the cost of public sector failure by pushing the poor out of the legal aid door. There is a significant risk that this will accelerate spirals of legal need so that the authorities (and the legal aid budget) are left picking up the pieces when cases have got much more serious than they needed to.

Most importantly, lives are ruined in the process. It is also worth saying that it is somewhat disingenuous to suggest that cuts in social welfare law are tackling litigiousness: the vast majority of the social welfare law spend was not spent on litigation. It was spent on legal advice and assistance helping those in dire need quickly and relatively cheaply.

To be fair to the coalition, the risks posed by spiralling legal aid have only been partially evidenced (there is very good evidence that legal needs ‘cluster’ together) and the government has done what most governments do when they cut legal aid: they protect (relatively speaking) areas of work which are associated with the courts and the public conception of legal rights –usually crime and family (although here, of course, the green paper proposes abolishing legal aid for many family cases). This has the added advantage of not alienating, as much as it might, powerful lobbies such as the criminal bar and the judiciary and is consistent with the ‘risks’ posed to any cuts by challenges under Article 6 of the ECHR.

My second suite of points relates to the argument that cutting legal aid will lead to more litigants in person and thus higher costs to the court system. I think this is only partially correct. The main effect of legal aid cuts will be to discourage people bringing or defending cases. My own research on litigants in person shows that most litigants in person do not participate in proceedings: they are usually defendants and at best participate very sporadically (and of course make more mistakes when they do participate). Where they do participate they cause sometimes significant problems. This is most often the case in family cases and it is to be hoped that the family justice review properly addresses the needs of litigants in person.

Judges and lawyers struggle to know their proper role when there are litigants in person, particularly when one side is represented and the other is not. One question is whether judges should assist the litigant in person with the presentation of the case? Does this ‘reaching over the bench’ prejudice their perceived neutrality? Is that more or less serious than the need to ensure justice in a particular case? How is a judge to deal with a case that raises law which s/he does not know and does not have the time to research? Judges will need to be trained and also may need to rethink their role if more litigants in person are the result of these reforms. I will be reading the green paper carefully for an indication that this has been understood and budgeted for.

Lawyers negotiating with a litigant in person struggle with their duty to their own client and the duty to not take advantage of the unrepresented litigant. Litigants in person, unsurprisingly, are reluctant to negotiate in circumstances where they are ignorant of whether any deal is proper, let alone in their interests. Court staff too are prohibited from giving legal advice to litigants. Different court staff interpret this in different ways; many use it as an excuse for not providing any help to litigants. Whilst the government makes much (legitimately) of the relatively high spend on legal aid in this country they omit to mention the very low level of resourcing of the courts. More litigants in person will make the level of resourcing even more critical than it currently is.

My third point is to wonder what Labour would have done. Anyone who listened to the debate in the House of Commons which ensued Ken Clarke’s statement could not fail to have noticed how Labour lined up to accept the broad thrust of the reforms, but there may be some very interesting devils in the detail. The Ministry of Justice had conducted a review prior to the election. It will be sitting in a file in the Ministry of Justice. It may reveal interesting alternatives to the cuts proposed in the green paper and (if I am right about that, and it is pure speculation on my part) those proposals should be part of the debate.

My fourth point is the 10% cut in rates. This is very important partly because its effects are so unpredictable. The Constitutional Affairs Select Committee received evidence on profitability of firms as part of its scrutiny of the Carter proposals. My recollection is that the picture painted was of very marginal profitability. This suggests that a 10% cut will push a number of firms and barristers out of the sector. The difficulty we have is in knowing where they will be pushed out: my guess is that it will principally be outside the very large urban areas. This suggests there will a marked geographic inequality in the way these proposals work out.

Richard Moorhead is Professor of Law at Cardiff University. You can read his blog here or follow him on Twitter.