FactCheck: Do legal aid reforms protect the needy?
The claim
“Our proposals protect legal aid where it matters most. It must be available where people’s life, liberty or home is at stake”
Justice Secretary Ken Clarke, writing in The Guardian, 20 December 2011
Cathy Newman checks it out
Their lordships are revolting. The object of their fury? Ken Clarke’s attempts to slash the legal aid bill. Some Conservative peers say the government’s reforms of the system will hit some of the most vulnerable.
Ministers insist the neediest will still get free or subsidised legal help, but that the £2bn spent annually on legal aid has got to be cut. Over to the team.
The analysis
Ken Clarke has to cut the Ministry of Justice’s budget of £9bn by £2bn. He plans to recoup £350m of it by culling England and Wales’ legal aid budget – which he’s keen on telling us is larger than anyone elses in the world, apart from Northern Ireland.
FactCheck has previously proved him right about this.
The annual bill for legal aid is £2bn, and latest data from the Council of Europe shows that England and Wales spent 34.5 euros a head on legal aid – or 0.15 per cent of GDP in 2008. The median is 1.7 euros.
But according to the Ministry of Justice (MoJ), England and Wales grapple with more civil and criminal cases than any other countries analysed.
Not only do we have more cases than most countries, but we have a high number of legally-aided criminal cases – and it’s these that are the “most important single driving factor of higher expenditure” for the MoJ.
In fact, a third of the entire legal aid budget – around £700m – is spent on the most serious criminal cases, such as terrorism and fraud – which only account for 10 per cent of all civil and criminal cases.
Indeed, Steve Hynes, director of Legal Action Group, told FactCheck that less than 400 of these cases cost the taxpayer a total of £125m in 2009.
The case for cuts
So why is it then, that Mr Clarke is clobbering the legal aid budget for civil cases rather than trying to scale back the huge cost of criminal cases?
Experts agree that Mr Clarke is hitting the civil budget “disproportionately”. Of the £2m legal aid budget, £1.2bn is spent on criminal cases and £985m is spent on civil cases.
So criminal cases cost more, and yet the criminal budget is only facing cuts of £70m, while the civil budget is being curbed by £240m.
Why? Professor Alan Paterson of Strathclyde University told FactCheck that it looks like the government is targeting civil legal aid because it’s an easier option.
In criminal cases the right to legal aid is protected under the European Convention of Human Rights – as people’s freedom is at stake. In civil cases, such as employment, divorce or benefits cases, freedom is unlikely to be an issue – so the Human Rights Convension and therefore the Human Rights Act offers less protection, except in cases such as domestic violence and child abduction.
Cutting more from the criminal aid budget without triggering a slew of Human Rights challenges would be tricky – especially within this parliament. But it’s not impossible – the Scottish have done it.
All this means that because of the Human Rights Act, all sorts of civil legal advice on employment, debt, immigration, welfare benefits and housing will be abandoned under Ken Clarke’s reforms.
Of the £280m in funding cut from civil legal aid – £130m will come from the Legal Help (advice only) and £150m from legal representation.
And that leaves ordinary people with everyday concerns, bereft of legal advice. The government expects some 600,000 people to be affected, and Mr Hynes of Legal Action Group told FactCheck that many of these will be among society’s most vulnerable – disabled people or those on lower incomes.
Mr Hynes told FactCheck: “Ken Clarke doesn’t really get civil law – he doesn’t get the importance of benefits advice or specialist legal advice – it is extremely complex.”
A Ministry of Justice spokesperson told FactCheck: “Our measures target legal aid at the people who need legal support the most, and on the most serious cases. Civil cases will continue to have to satisfy the public interest before being funded, as they do now. And criminal legal aid will continue to be available for those who cannot afford it themselves when facing prosecution by the state. We believe it is in the public’s interest that they should receive fair justice.”
Cathy Newman’s verdict
As civil claims will shoulder 80 per cent of the legal aid cuts, the Justice Secretary’s claim that the neediest will be protected is highly questionable.
In fact, 600,000 people will lose their free or subsidised legal help to sort out their benefits, job or family problems.
The analysis by Emma Thelwell
There are 11 comments on this post
Cathy/Emma,
Of COURSE the needy lose out. It’s the whole raison d’etre of the Tory Party. They have always been thus and always will be.
But they have yet to explain why it is necessary to impoverish lower paid citizens to encourage them to do better……while paying themselves MORE to, er, encourage themselves to do better.
It’s the Tory way.
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Philip, it is indeed the Tory way. The rich need big bonuses to ensure they work harder, the poor need the fear of the workhouse.
It is almost certainly written (in Latin) on the walls of Eton, probably in the chapel where morning-suited would-be Camerons peep giggling through open fingers during prayers, knowing that god is on their side.
But what hope for any kid born in a stable this Christmas?
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The 10% cut in the fees paid to legal aid providers is bound to lead to a reduction in the number of solicitors and advisers providing legal aid services. There are already “advice deserts” in areas of the country,particularly rural areas, where people cannot gain access to legal aid services and this will only get worse.
The withdrawal of legal aid for damages claims for housing disrepair and unlawful eviction against private landlords will lead to greater exploitation of tenants by the sort of landlords recently featured in Jon Snow’s programmes.
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Though since the people getting evicted are unlikely to vote Tory and those that will be saved from such actions i.e. slum landlords, are most likely to vote Tory, then this to be expected.
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Aren’t these just the people the Government don’t actually want to help? Their cases are generally likely to increase costs elsewhere – e.g. on benefits. So there’s a cunning logic underlying this. Why would anyone think a Conservative Government would wish to help poorer people. And evidently the LibDems don’t either.
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Well done Cathy-add into the mix the fact that Ken Clarke’s biggest percentage cut to any sector is a 77% cut to the not for profit legal aid sector, law centres, CAB and legal advice centres (the Big Society cut you could call it) and you have a social disaster in the making.
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This item includes a statement:
“In civil cases, such as employment tribunals, divorce or benefits cases, freedom is unlikely to be an issue…..
All this means that … all sorts of civil legal advice on employment, debt, immigration, welfare benefits and housing will be abandoned under Ken Clarke’s reforms.”
For the record, Civil legal Aid is in fact not available anyway for cases in employment tribunals below the Employment Appeal Tribunal (i.e., most of them) or most other administrative tribunals; so you can include them out.
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In the news report on this yesterday evening, Cathy explained that the right to (criminal) legal aid is protected under the European Convention, but went on to say that if Ken Clarke cut this part of the legal aid budget, “he could fall foul of EU law”. I’m not sure that there’s a direct connection between convention rights and those laws we have that result from our membership of the EU.
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Hi Mike, Emma from FactCheck here. As a member of the European Union we have to sign up to the European Convention of Human Rights – but you’re right – for Cathy to say he’d fall foul of EU law is not technically right. The point she was trying to make, is that by cutting the budget for criminal cases there would be more chance of facing a Human Rights challenge(for not offering legal aid).
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Does this cut include prisoners who get legal aid, whilst in prison serving a sentence for breaking the law & yet seem to have more human rights than people who they commit crimes against & a lot of the general public who
don’t break the law
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