Should law and justice be free? Part 5: Legal Aid

What is legal aid?

Legal aid is a scheme where the state covers the cost of professional lawyers to advise and represent clients in certain areas of law.

Subject – for civil claims anyway – to financial vetting of the client and subject to the case having a good chance of success.

Our legal aid scheme started in the 1950s and I understand that it was originally viewed as a twin to the National Health Service – one safeguarding our health and the other safeguarding our legal rights.

Legal Aid was largely a good scheme and helped many people, although it has to be said that not a few of the clients were undeserving.

It was very expensive though and as the cost ballooned from millions into billions, the government took the view that they had no alternative but to cut it down.

Cutting the Legal Aid bill

Government was a lot more successful in cutting the legal aid bill than it was with the National Health bill.

But then the NHS is dear to the nation’s heart.  It is manned by nurses – who attract much sympathy. Legal Aid work, on the other hand, is done by lawyers (frequently described as ‘fat cat’ lawyers) who attract no sympathy whatsoever.

This is unfair though. Proper ‘fat cat’ lawyers would never do legal aid work. There isn’t enough money in it.

However, it is arguable that in many ways the government’s dealings with Legal Aid have been short-sighted.

Much of the cost is not the lawyer’s fault

The big cost of the scheme is for lawyers’ time as they charge by the hour. I won’t say that legal aid bills have never been padded by financially strapped legal aid lawyers. However, the real reason for the high bills is that law and court procedures are complex and the work time-consuming.

I can attest to this – I used to be a litigation solicitor.

However cutting the legal aid budget has caused problems

Problems caused by legal aid cuts

There are two main problems

1 The loss of expertise

If no, or very little, legal aid funding is available, then it will not be economic for legal aid firms to continue.

This is not so much a problem for the solicitors – they are clever people. They will be able to re-train and do something else. I was a legal aid solicitor at one time.  I got out and I now do something else.

No, the real sufferers are potential clients who will no longer have suitably trained and qualified people to manage their case – sometimes even if they can pay for it privately. There are swathes of the country with ‘legal aid deserts’.

Housing advice is particularly affected for example in Wales and Suffolk.

2 The problem of litigants in person

If people have problems and need to go to Court, then if they can’t get Legal Aid they will have to ‘do it themselves’. However ordinary people are frequently clueless about the legal process and often totally unsuited to managing their own case.

In effect, the problem is moved to the Courts as the Judges have to help them. This inevitably means that cases drag on much longer which is causing enormous bottlenecks in the courts. I discussed this in this post in 2011 and I don’t think things have changed much.

However, there were also big problems with the legal aid scheme itself.

The problems with Legal Aid:

Complexity and inefficiencies

The Legal Aid scheme was, and no doubt still is, a bit of a juggernaut. When I knew it, it was also very inefficient. For example, after I cancelled my legal aid contract, they carried on paying me even though I had told them to stop.

I am pretty sure that a significant part of the Legal Aid bill is down to inefficiencies and overpayments.  Or maybe was.  I have not been involved in legal aid for a long time.

Unfair advantages to legal aid litigants

Then although legal aid meant that the very poor were able to get help, this was often extremely unfair on their slightly better off opponents who were unable to get legal aid themselves. Particularly if they were a defendant.

Frequently cases were settled in the legal aid litigants favour because the non legally aided party simply couldn’t afford to carry on, particularly as their chances of getting their costs back were slim. This is not justice.

Arrogant legal aid clients

It also has to be said that although the majority of my legal aid clients were lovely, the worst clients in my experience were almost all legal aid clients.

Many were rude, arrogant and did not hesitate to mess you around. They weren’t paying so why should they bother? These problems don’t arise with my (mostly landlord) private paying clients now.

It is very true that people often don’t respect what they don’t pay for.

Where now?

Legal aid, although still with us, is a shadow of what it used to be. For example in housing-related cases, legal aid certificates are generally only granted (so far as I am aware), where the tenant is on benefit and threatened with eviction proceedings which are defendable.

Legal aid is still important in criminal cases, and there are still some areas of civil law where it is available (see the gov.uk section here).  However, you are only likely to be eligible if you are on benefit.

There are some exceptions. Many courts have housing advisors attend on ‘possession hearing days’ and Shelter, the CAB and Law Centres will often help whether or not legal aid is available – although they cannot afford to do this all the time or they would not be able to stay open. Indeed many have closed.

However this is the 21st Century, and technology has new answers for old problems.

We will take a look at some of these in the next post.