Facts, not flannel

Now that the dust has settled after the initial furore over the Lord Chancellor's much-leaked speech to the Law Society conference, it is time for the profession to take stock.

Lord Irvine's stated intentions are clear. First, the legal aid budget is, as he sees it, out of control and the problem must be tackled. He then says, quite rightly, that the civil justice system should be made accessible for everyone, not just the very poor and the very rich. His solution is to withdraw legal aid from all money claims, and make the merits test for the remainder far more stringent. Instead of being funded by legal aid, litigants who cannot afford to take a case to court must have recourse to conditional fee arrangements, which will be extended to all civil cases except family matters.

Will these reforms 'throw open the doors of the justice system to all who need to enter', as Lord Irvine claims? Or is it just a cost-cutting exercise, designed to please the public at large by laying the blame for the high cost of litigation at the profession's door?

Middle income Britain, those not eligible for legal aid, may benefit from the wider use of conditional fees, but what of the poor? There are real fears that the poorest members of society will be deprived of access to justice. Conditional fees are not a substitute for legal aid. Unless litigants can afford to pay the insurance premium, a conditional fee arrangement is not an option. And even for those who can afford the premiums, conditional fee agreements are unworkable unless insurance is available.

This fundamental question needs to be addressed, most particularly with regard to medical negligence cases, and clarification is needed on many other points, such as the position of defendants in conditional fee cases, what identifies a public interest case and whether children will still be entitled to legal aid for damages claims.

In his speech, Lord Irvine made it plain that he would not be moved from his main purpose. However, on at least some of the means by which this purpose is to be achieved, he promised consultation. Lawyers must seize the opportunity, and ensure that the consultation process is meaningful and not just a rubber stamp.

This means a concerted effort by both sides of the profession, working with consumer groups to ensure that only those proposals which are both fair and workable are implemented. We need to get a true picture of the result of Lord Irvine's proposals, showing the actual numbers likely to be deprived of access to justice. Accurate figures are also needed to show what savings will result from the reduction in legal aid spending.

Generalisations and unsubstantiated arguments will achieve nothing. We need hard facts, untainted by any special pleading on behalf of the profession's own interests.

The image of lawyers in the media is already low, as tabloid reporting of Lord Irvine's speech confirmed. Neither the government nor the public will listen to arguments which focus on possible hardship for the profession as a result of Lord Irvine's reforms. What matters is the effect on clients, and this is the message which we must get across.