Legal aid plans will lead to "huge increase" in unrepresented litigants, say judges

February 24, 2011

The government’s legal aid reforms would lead to a huge increase in the incidence of unrepresented litigants, the Judges’ Council has warned.

In its submission to the Ministry of Justice’s consultation, the judiciary argued that this would have “serious implications for the quality of justice and for the administration of justice in terms of additional costs and delays – at a time when courts are having to cope in any event with closures, budgetary cut-backs and reductions in staff numbers.”

The Judges’ Council suggested that the MoJ consultation paper showed an awareness of the issue but had failed to recognise the depth of the proplem.

“Even if one focuses on cost alone, there is a real question whether the cost savings arising from the proposed cut- backs in the scope of civil and family legal aid would be offset by the additional costs imposed on the system by dealing with the increase in litigants in person,” its submission said. “Neither the consultation paper nor the accompanying impact assessments address that question adequately.”

The Judges’ Council said it acknowledged the seriousness of the economic background against which the reforms had to be assessed – such as the underlying economic problems, the general cut-backs in public expenditure that they necessitate, the particular target for a reduction in the MoJ’s budget and the aim of providing a substantial contribution to that target by a reduction in legal aid expenditure.

“There can be no doubt about the financial pressure on the legal aid fund or the need to achieve real savings in this area,” it admitted, adding that it recognised that the MoJ had undertaken a careful exercise in seeking to strike an appropriate balance in the achievement of these savings.

However, the Judges’ Council said it had “numerous concerns” in addition to its fears about a rise in unrepresented litigants.

The submission warned of the effect of the reforms on access to justice, arguing that they would be damaging in a number of ways.

The Judges’ Council predicted that cut-backs in the availability of Legal Help in civil and family law would undermine the work and even the viability of community advice agencies, and would place additional burdens on the tribunal system leading in turn to extra costs and delays.

“It is difficult to see that what alternative sources of funding will be available to [such agencies], especially at a time of severe cutbacks in local authority expenditure,” the submission warned. “Their collapse would prejudice the disadvantaged, for whom the proposed service based on the Community Legal Advice helpline would be unlikely to constitute an adequate and trusted alternative.”

A further concern expressed by the Judges’ Council was that the MoJ’s proposals would deny litigants publicly funded representation, “and would either prevent the pursuit of litigation at all or force litigants to pursue it in person, in areas of civil and family law where legal representation is important for the proper conduct of the case”.

The submission suggested that that the proposed scheme for funding excluded cases where it is shown to be necessary in order for the United Kingdom to meet its legal obligations was “unduly narrow and would not be sufficient to counter those adverse effects”.

The Judges’ Council also warned that the proposed cut-backs in fees for publicly funded work would provide a further disincentive for advocates to undertake this type of work.

“There is a real concern, especially in relation to family and criminal work, that the pool of skilled advocates willing to undertake the work will diminish, to the disadvantage of litigants and to the detriment of the efficient running of cases,” the submission said.

“Moreover, there are likely to be longer term adverse consequences for the recruitment of able advocates into these fields of work and, at the other end of the spectrum, for the existence of a sufficiently large and diverse pool of able advocates suitable for appointment as judges in such cases.”

Philip Hoult