I’m sure most will be aware that on the 15th of November 2010, Kenneth Clarke made a statement to the Commons that it is his intention to cut the Legal Aid budget by up to £400million over the next decade.

Oh my goodness (or words to that effect!) I hear you say. Where does that leave vulnerable clients?

Mr Clarke told MP’s that £2billion is spent each year on Legal Aid and his belief is that access to justice is the hallmark of a civilised society. He then said that as the UK has one of the most expensive legal aid systems in the world, (this has since been challenged in TV interviews, as Europe expends a similar amount – although more of their budget is used on mediation methods) this cannot continue. Mr Clarke further told MP’s that “it can’t be right that the taxpayer is funding cases which should never have reached the courtroom door were it not for the fact that someone else was paying’.

The upshot is that Legal Aid may cease for most private law children & family matters and ancillary relief matters (where domestic violence is not present), debt, employment, some housing disputes (where a person’s home is not at immediate risk), welfare benefits, immigration (where the individual is not detained), clinical negligence save complex cases, consumer & general contract education. The proposal is that all of these will be mediated by the CAB and other organisations.

Funding will however continue for cases where life or liberty is at risk such as children being taken into care, child abduction, forced marriages, domestic violence, mediation (encouraging couples to resolve matters without resorting to court), crime, inquests, asylum, mental health, debt and housing where a person faces eviction and judicial review.

So what does the future hold?

Ministers have mooted that private insurance taken out by individuals could help cut Legal Aid bill. But do clients who qualify for legal aid have the residual income to take out insurance on the off chance they may be locked into a dispute at some future uncertain date?

The Law Society is considering the green paper in detail and suggested a new tax on alcohol to cover the cost of Legal Aid on the basis that alcohol abuse plays a significant part in criminal behaviour. Their report following their Access to Justice Review, which coincidentally was published 15th November 2010 suggested:

  • A levy on the financial service industry topping up the fund thereby meeting the cost of City fraud cases;
  • Addressing inefficiencies and poor decision making of the justice system and government;
  • Reducing legal aid bureaucracy by giving practitioners more autonomy to deliver services and offer innovative means of delivery;
  • A review of civil procedure, particularly in respect of low-value cases.

The Bar Council has set up a major working group to respond to the consultation papers with the objective of ensuring that there will be alternative means of accessing justice should these cuts take place.

There could still be light at the end of the tunnel, however. Although cuts in the present economic climate are inevitable, these are at present only proposals. With representation from our professional bodies, MP’s (some of whom have already expressed strong concerns on the impact these will have on the low paid) and those organisations involved in providing legal support, the government should realise that it is just not feasible to expect these organisations to attempt to mediate all disputes when some can only properly be determined by the court.