BPP dean schools Vara on litigants in person crisis

Meanwhile, Lord McNally says lawyers are being 'fraudulent' with access to justice claims and that the profession should not resemble a 1970s trade union

The former minister for legal aid Shailesh Vara has been handed a lesson on the importance of access to justice by the dean and chief executive of BPP University Law School, Peter Crisp, who said that a denial of protection to the poor was an 'enemy of the rule of law'.

Vara, a former City lawyer who was minister for both legal aid and courts before being broomed in Theresa May's first cabinet reshuffle, was appearing on a panel for centre-right political think tank Politeia alongside Hugh Barrett, director of commissioning and strategy at the Legal Aid Agency, and Crisp to consider the role of legal aid in an effective legal system.

'The legal system comes at a price,' said Vara. 'There are those than can afford to use their own resources to pay the expensive fees of solicitors and barristers; there are those who are happy to give their services to whoever can open up their wallet. But for those that cannot afford to pay, for certain categories of work, we have legal aid.'

In recent years legal aid spending has been cut from £2.4bn to £1.6bn. Nevertheless, Vara trotted out the same old Ministry of Justice (MoJ) soundbites which claim that, despite the cuts, the UK has one of the most generous legal aid systems in the world.

While accepting 'those who make the cuts can expect the criticism that goes with them', Vara attempted to defend the coalition government's introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) by arguing that, had Labour retained power in 2010, it too would have made cuts to the legal aid budget.

Against the backdrop of the global economic crisis, Vara explained that ministers had had to make tough decisions and 'it wasn't easy to take LASPO though parliament', which he admitted had resulted in some 'serious cuts'.

Attempting to address the criticism levelled at the government for the exponential rise of litigants in person, Vara said: 'Litigants in person are not a new phenomenon. They didn't start appearing just when the cuts started. Litigants in person have been around for a very long time and our judges are trained in how to deal with and help them.'

It was this unconvincing and defensive display from the ex-minister that drew a response from Crisp, who in addition to being a barrister is a trustee of the court-based Personal Support Unit (PSU) charity, which has seen an almost four-fold increase in litigants in person. Having assisted approximately 13,000 litigants in the year before LASPO's introduction, the PSU is expected to help 50,000 by the end of 2016.

'We are guiding litigants in person through a court system that is historically designed for professional interpretation and which is predicated on litigants having professional representation,' said Crisp. 'This system is not designed for the mass volumes of litigants in person.'

'The consequences of LASPO have come home to roost,' he added. 'The most recent statistics from the MoJ show the extent of the devastation. State-funded advice to the help scheme is one-third of pre-LASPO levels, representation before a court or tribunal about two-thirds what it was, there were 11 per cent fewer housing cases compared to the same quarter in the previous year, and cases for the duty solicitor scheme in the county court are down 20 per cent year on year.'

The dean continued: 'Access to justice is a key component of the rule of law. According to a Law for Life report from 2015, over the next three years 50 per cent of people will experience a civil justice problem. Denial of legal protection to the poor litigant, who cannot afford to pay, is an enemy of the rule of law.'

Trying to deflect the criticism, Vara said there needed to be a public culture change, with litigants no longer rushing headlong to court in search of justice but instead looking to resolve disputes in a 'better, quicker, and cheaper way'.

'We need to recognise what "I'll see you in court" means,' he said. 'Money that would otherwise be spent on legal aid could go to health, transport, defence, education, or so on. There is no bottomless pit, it is question of deciding "do we spend here or there?". And wherever you spend you are going to get criticism from the people who would have liked the money but didn't get it.'

However, Crisp pointed out that the Lord Woolf reforms had indeed already brought about a shift in culture. 'We now have the CPR which is designed to avoid people going to court. There has been a culture change. Most law firms now have dispute resolution departments rather than litigation departments.'

Trumpeting the government's plans for online lawyerless courts, Vara said the proposals would be 'bad news for lawyers but good news for the public'.

'This isn't about lawyers,' replied Crisp, 'this is about citizens. Citizens perceive that the legal system gives them fair access to justice and I think that perception is being severely damaged at the moment.'

Defending Vara and the coalition government, the Liberal Democrat peer Lord McNally, who was sitting in the audience, told Crisp: 'You've got to accept that bandying about "access to justice" is really quite fraudulent. To govern is to choose. Is £1.6bn access to justice or is it £2.4bn? Or is it £3.4bn?

'The legal profession has got to look at itself and see how it can contribute in an unprotected department. We have got to get into a sensible debate and make people face up to the fact that there is limited funding and hard decisions to be made. Seeing lawyers outside the Ministry of Justice looking like 1970s trade unionists does not help the status of the profession or help us find a solution.'

The peer, who guided LASPO through the House of Lords, called for a review of the legislation by both Houses of Parliament to ascertain where improvements could be made. Vara said the government remained committed to a review between three and five years post enactment.

John van der Luit-Drummond is deputy editor of Solicitors Journal
john.vanderluit@solicitorsjournal.co.uk | @JvdLD