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Whoever wins the election will cut the legal aid budget, minister warns

6 April 2010

More than one hundred lawyers gathered at the panel debate held to mark the launch of Closing the Justice Gap, a collection of essays produced by legal think tank Jures and published by Solicitors Journal, which considers new options to ensure the survival of legal aid and maintain access to justice.

The event, held at Norton Rose and chaired by newscaster Jon Snow, outlined a number of new financial mechanisms ranging from a levy on all solicitors to a complete overhaul that would see the Legal Services Commission becoming an NGO.

Justice minister Lord Bach was one of the panellists and what the audience had perhaps not anticipated was his stark warning that, whichever government was elected at the forthcoming election, there would be a cut to the legal aid budget.

The latest budget estimates envisage that under Labour legal aid spend would reduce by between 17 and 20 per cent. Lord Bach said the cuts were inevitable and that all professions were affected by the recession, including legal aid lawyers.

Lord Bach was responding to shadow justice minister Henry Bellingham QC, also on the panel, who indicated that a Conservative government would not be making further cuts and would be looking at additional funding sources to meet demand.

Bellingham’s proposals, which he explains at greater length in Closing the Justice Gap, could see all solicitors contribute to a legal aid fund on the basis of the French model, Caisses des Règlements Pécuniaires des Avocats (CARPA). Under CARPA, the money lawyers hold for clients is centralised in a national account where it accumulates interests; interest not claimed goes towards funding the legal aid scheme.

The Conservatives’s proposals also include greater use of before the event (BTE) insurance and the application of the polluter-pays principle to the legal market.

Lord Bach’s view, articulated further in this week’s issue (see page 19) was that lawyers should not be lured into thinking the opposition’s plans would solve the current legal aid crisis. In the current economic situation, cuts to the legal aid budget were inevitable, irrespective of which party would be in power.

Lord Bach acknowledges that legal aid had been in a difficult position for some time but that it remained “a reasonably well-funded part of public spending” and that contribution per head was still “much higher than any comparable country”.

According to Lord Bach, prioritising the expenditure was the only tenable solution and that a lot more should be spent on civil legal aid than on criminal legal aid.

Unfortunately, the minister said, the people who needed assistance most did not have enough of a voice. He also suggested legal aid was too often associated with court proceedings, whereas legal help should be about keeping people away from court.

His aim, he said, was to preserve the current spend on civil legal aid.

Roger Smith, director of JUSTICE, called for a review of the approach to the delivery of social welfare legal services, starting with a change of name from ‘welfare law’ to ‘poverty law’, as it is referred to in the US, which would describe more accurately the purposes of the civil legal aid regime.

Beyond a terminology change, Smith advocated a radical restructuring of the legal aid market. Building on his experience at legal aid centres, the former Allen & Overy lawyer said the current funding streams would be diverted to NGOs around the country under the aegis of a national organisation. This central organisation would be responsible for setting out a national strategy to tackle poverty and allocate funds that regional units would bid for to achieve the objectives at a local level.

The fourth panellist, Steve Hynes, focused primarily on possible cost savings through better allocation of resources.

Most people, for instance, bought BTE insurance at the cost of £20-£30 a year but rarely got the best of it, he said. He suggested there should be a triage service, run in conjunction with the insurance industry, to ensure claimants were referred to the most appropriate service provider.

The director of the Legal Action Group also criticised the duplication of telephone helplines and the unnecessary duplication of costs.

But Hynes highlighted that the savings made would remain minor on the scale of the legal aid budget as a whole and that the budget should be entrusted to an arm’s length organisation such as the Legal Services Commission or the old Legal Aid Board, whose duty would be to ensure the funds are used as reasonably as possible in the light of the access to justice principle.

Laura Janes, head of legal at the Howard League, called for more joined-up services, saying this approach was a basic good governance principle. Lawyers were not a necessary tool in the fight for justice, but, too often, she said, they became the law enforcers for clients about to lose their homes or children with nowhere to live.

Paul Mendelle QC, chairman of the Criminal Bar Association, picked up the theme. The increase in the number of offences had led to more people being prosecuted. He did not accept that criminal legal aid should be cut. Instead, he said, the government should consider how it wished to tackle crime and reconsider its prison policy, or ensure that people are represented properly through an adequately funded legal aid system.

Closing the Justice Gap was published last week with issue 12 of Solicitors Journal. To order additional copies, go to www.wlrstore.com

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