Legal Aid in England and Wales - Essay Example

Critically discuss the position of legal aid in England and Wales Introduction Legal aid in the past has been administered by Legal Service Commission with an allocation of annual budget of £2bn to help more than two million people access legal services (lawyers and court) for their legal cases per year. The Criminal Defense Services covers criminal cases and advice people detained in police stations while Community Legal Services covers all civil cases. The legal Services Commission through Funds solicitors and agencies advise people on their legal problems, such as debt, eviction, and family breakdown, and if necessary represent people in court The government proposed changes in the civil legal aid as outlined by Justice Secretary Kenneth Clarke would see civil legal aid only routinely available for cases where life or liberty was so much at stake (Ministry of Justice, 2009, p.4). The funding would be removed on dispute like (Divorce, welfare benefits and school exclusion appeals, Employment, Immigration where the person is not detained and Clinical negligence and personal injury).However, legal funding would continue for cases like (Asylum, Mental health, Debt and housing matters where someones home is at immediate risk, Family law cases involving domestic violence, forced marriage or child abduction and for mediation as a means to resolve disputes). Other measures to be put in place are the use of telephone as single gateway to legal advice, purported benefit eligibility to access legal aid being replaced to depend on the disposable capital one has so as to qualify for the legal aid, and also the decrease in fees paid to the solicitors, judges and the barristers that provide the legal aid. The changes proposed in the legal aid are expected to cut the legal aid bill by £350m a year by 2015. As its It is thought there would be 500,000 fewer civil cases as a result. The plan was taken through consultation from the public starting 15th November 2011 to 14th February 2011, so that the justice ministry could get the view of the public on the intended changes. Positive impacts of the Proposed Civil Legal Aid Reforms Save on taxpayer’s money It would discourage cases that are not worth taking to court being resolved through other methods of dispute resolution like mediation. As Mr. Clarke points out when reading the proposal to the MPs, he says that legal aid has seen unnecessary court cases that would have not reached the court-room door were they not being funded by tax payer’s money, but from the pocket of somebody else. He adds further that the proposal targets civil ‘and family schemes that discourage people to resort to lawyers and courts whenever they have problems but exhaust other methods of dispute resolutions. Plan by Mr. Clark to introduce a means tested contributions in legal aid cases by reforming the way the lawyers are paid by overhauling the conditional fee arrangement in no-win-no-fee cases. The Ministry of Justice Legal Aid: Refocusing on Priority Cases set out a range of proposals to tighten the civil legal aid funding rules to target resources more effectively. Following consultation they plan to make a number of changes to civil legal aid to improve the way that cases involving human rights or public interest are handled by transferring cases that depend on these issues to receive funding to a new committee for advice on their merits. This would help to ensure that legal aid is awarded to meritorious cases. In addition, it restricts funding for low-value damages claims brought as part of a multi-party action. This would help to ensure that limited resources are available for higher-value cases, or cases brought by individuals. This ensures that cases granted legal aid on the basis that the proceedings would bring benefits to others have a realistic prospect of delivering such wider benefits. This helps in detecting fraudulent legal aid applications earlier, by checking with the unfunded opponent to ensure that the applicant is financially eligible for legal aid, with safeguards for domestic violence or urgent cases. Besides, it ensures that where legal aid funds a community action, the legal aid contribution mirrors the proportion of the affected population who are actually eligible for legal aid. Tighten the funding rules for granting legal aid for judicial review cases to ensure that funding is directed towards meritorious cases. In the process, it tightens access to civil legal aid in England and Wales for those who do not reside in the UK or associated territories, with safeguards for important human rights cases. Negative Impacts of the Proposed Civil Legal Aid Reforms The Cuts To Legal Aid Would Affect Quality of Legal Advice and entry to The Profession The proposed change would affect the poorest and most vulnerable in the making it harder for them to access quality legal advice. The government proposal puts no emphasis on the importance of the quality of advice; its aim seems that as long as it is cheap, it does not matter how good the advice is. The risk of this bad advice because government cuts to scope and eligibility and the risk to the society denial of justice would far outweigh the short term savings Implementing the proposal would see hardworking firms forced to close, and many dedicated to the life of legal aid would lose their jobs, hence forcing students and young lawyers to turn to other legal sectors to look for alternative ways of assisting the vulnerable people in the society, this would deprive their clients and professional for the next generation committed legal aid lawyers. This would leave “conveyor belt” firms that haphazardly handle clients like writing a single advice letter to a client then closing the file just to get cash for the case; these appalling works would leave the client in a worse position than before. This means a taxpayers money would be used to purchase an abysmal service, hence the vulnerable would be exploited for financial gain The implementation of the proposal having forced more firms to close down would leave the remaining ones busy doing the legal aid work and would not have time to give young lawyers training contracts, and even if they are given chance, they would not be well supervised, which would give rise to poor quality of their service provision. The scraping of the Legal Services Commission Training Grants is a significant loss to the ability to train graduates in legal aid The training grant has in the past financially supported the small firms to enable to train graduates. Scraping it would make this firms find it harder to train the many aspiring lawyers, hence forcing the young graduates to turn to other areas of law in order to train and pay off their student loan. The scraping of the grant was condemned by Lord Bach, the former legal aid minister saying the move would make skilled and committed young lawyers not to choose the legal aid path, and go to other parts of the law, he stressed that everyone knows there is need for a saving in the budget, but cancelling the superb scheme which has worked well for eight years to save £2.6 looked petty and incredibly short-sighted. Times Survey recently carried out by the College of Law found out that of the nearly two thousands who responded to the survey, showed that more than 28% said that they would like to pursue a profession in Legal Aid. However, 65% of these said that they were unlikely to take this further because of potential Legal Aid cuts that is looming. 80% of students who responded feel that legal aid/publicly funded lawyers are underpaid. Nearly three quarters of the students believe that the Legal Aid budget should be hinged to uphold access to justice for all (Justice for All, 2010, p.7). YLAL’s research into social mobility entitled Legal aid lawyers: the lost generation in the “national crusade” on social mobility carried out in February 2010, indicated that there are a great and many highly talented candidates who cannot enter the legal aid sector because they cannot afford to. Increasingly in order to make themselves attractive to prospective employers, candidates have to work on a voluntary basis. This has implications for social mobility. Bright students from poorer backgrounds would be forced to turn elsewhere. The legal advice telephone helpline as single gateway to legal access would cut-off the most vulnerable from accessing legal services The single telephone gateway to access legal matters on none emergency cases would limit the face-to-face approach for specialists that the clients have used before or have been recommended to them by people they trust. Delivering a higher proportion of advice by telephone may cause access problems for some vulnerable clients, for example due to the literacy issues, problems of acting on the advice given, sensitivity of the issue like the domestic conflict, language barriers, inability to pick up on the non-verbal issue, some may lack the cost to foot the telephone bills, in addition the telephone providers are likely to have a diminished local knowledge (Ministry of Justice, 2011, p.6). The disabled people may find it difficult to manage their paperwork through the phone services, making it harder for them to communicate and manage any emotional distress more remotely (Justice for All, 2010, p.5). National AIDs Trust that advocates for the people living with the HIV/AIDs feels the single telephone gateway to access civil legal aid would seriously affect people living with the HIV because of the following reasons:- 1. People living with HIV would face discrimination caused by their disability and may not be comfortable disclosing the nature if their claims to the telephone advisor, hence hindering them to access legal advice for these claims. They should be able to approach face-to-face legal aid provider who is experienced in disability discrimination cases. 2. Migrants who use English as a second language may not be able to access the telephone lines and express their claims to the legal advisors. 3. Its sometimes important to view the documentation of the client so as to get the true nature of the client problem, this aspects of the documentation would be hard to communicate over the phone, hence may miss the assistance they are entitled to. This has been observed by those currently providing advice under the Legal Aid. 4. Those who are distressed and frightened, like the individuals with immigration problems may be less willing to express their problems over the phone. Wider social and economic cost would result from the cost cutting as shown by the impact assessment relating to the changes in the scope as outlined by the Junior Lawyers Division of the Law Society of UK They outline that the social and economic cost as a result of the cuttings would include the following:- 1. Reduced social cohesion. Falling to apply the rule of law fairly to all may generate an inclination not to respect rules and regulations and not comply with socially set norms and expectations, leading to generation in social costs. Also relating to family cases, children would also be affected as well as their parents. 2. Increased cases of crime. This may arise from the escalation of unresolved civil and family disputes, or if criminal means are applied in resolving disputes in future and if lack of legal aid would encourage others to take advantage of others who might find it hard to defend themselves in future. 3. Reduced business and economic efficiency. Failure to enforce rights and also not applying the rule of law may lead to business uncertainty; undermine work incentives, and the operation of markets hence having negative effects on the economy. 4. Increased costs of resource for other Departments. Failure to resolve the civil and family issues may make people to continue to relying upon the state, because failure to resolve one issue may lead to another arising. This may include health, education, housing and other local authority services including services provided by the voluntary and community sector. Reduced resource transfers from the legal aid fund might lead to increased financial transfers to the poorest through welfare benefits or tax credits e.g. people who previously received legal aid might use up their own savings in future to finance a case, and in so doing they might pass a benefits threshold. 5. The economic efficiency of dispute resolution may see the government extrapolates a worst case scenario whereby the case outcome for the clients may be significantly worse and the family dispute resolutions may be significantly worse. The removal of re-housing and suggestion of alternative sources for advice would negatively affect the vulnerable The people living in accommodation in extremely unsuitable conditions and have not been correctly accessed under the allocation scheme would not have any future hope for help. Though this conditions are not so life threatening hence may fall outside the scope, but they involve situations where this people have lived in this bad situations for years and their landlords does nothing to improve the situation, so if funds could be available for the counterclaims and not a free standing claims, this may act as s disincentive for tenants to pay their rents (Omonira, 2010, p.10). Also looking at the suggested alternative sources of advice, it can be criticized on the ground that how an in-house local authority cans would give an impartial advice to some people seeking to challenge the authority allocation scheme? The Local Authority Ombudsmen similarly would not have the resources to take on the increased number of cases, which would be left as the volunteering counseling centre risk closing down when the legal aid is cut. The Ombudsman is also a long process and decisions are difficult to enforce. Though there are other proposals to amend CFAs would mean that many people would be unable to obtain any legal assistance, as these changes are also likely to lead to an increase in litigants in person, meaning that cases where a specialist provider would have advised that a client should not pursue a claim would proceed to Court, which could result in an increase in claims at Court costing the Court valuable time and money and the money that the government is intending to save by cutting the would goal aid would still be used at the court (National Aids Trust, 2008, p.8). The Eligibility for Legal Aid would see many blocked from accessing the legal service The removal of the current purported benefits subjecting all applicants to capital assessment, with increased contribution from the capital would mean many people would not afford the legal aid. The current systems of the capita disregards capitals and hence is taking into account vulnerabilities from certain groups as the elderly as well as those who do not need to re-mortgage their homes so as to obtain the legal assistance. So by increasing administration by removing the purported benefits and requesting the providers to collect the one of £100 contribution would also see the lawyers’ works who are already dealing with a large amount of bureaucracy. The children and young people these changes would affect because they are England and Wales’ most vulnerable Research by Sound Off For Justice and Just Rights on the impacts of the proposed Legal Aid, Sentencing and Punishment of Offenders Bill on children and young people suggests that approximately one-third of 18–24-year-olds experience at least one civil justice problem over a three and a half year period and that 16–24-year-olds would experience at least 2.3 million rights-related problems requiring advice a year. Research goes further to shows that disadvantaged, vulnerable young people are the most likely to need legal advice. The recent figures from the Ministry of Justice give a breakdown of the types of cases for which children and young people use legal aid to help deal with as debt, housing, welfare benefits and asylum and immigration most of which would not fall within the scope as per the new proposals (Sound Off For Justice and Just Rights, 2010, p.12). Help with legal representation is most often given for housing, immigration and clinical negligence. Children and young people who need legal aid are vulnerable 80 per cent of young people reporting civil legal problems also face other disadvantages including single parenthood, having a mental health issue, being a victim of crime, or exclusion from education, employment or training.10 Data from the 2004 civil and social justice survey shows although young people who were not in education, employment or training accounted for less than one in five 18-24 year olds, they accounted for approaching half of all young people seeking legal advice (Ministry of Justice, 2010, p.14). The research goes further to show that many children and young people in UK meets the criteria for vulnerability and the statistic is as shown: 1. 30 per cent of the households are headed by 16-24 years olds live in poverty. 2. 36 per cent of the people presenting to the local authorities as homeless between January and March 2011 were aged 16-24. 3. The latest unemployment figures shows that 20.2 per cent of the 16-24 years old are unemployed.206,000 16-18 years old are without work as are 744,000 18-24 year old. 4. In 2010 there were approximately 225,000 young peopling aged 16-24 living alone (Ministry of Justice, 2010, p.15). Conclusion The impact assessment on the impact of the Legal Aid reform, made it very clear that, it would have adversely negative effect on the most vulnerable members of the society (i.e. the low income group, children and youth, HIV and AIDs victims, Asylums, Immigrants, The young professional Lawyers), and the money the government can be opting to save can later be spend adversely when the economic, social, and political situations gets out of hand. This we see making Ken Clarke in June 29th 2011, after criticism to announce a £20m fund is to be created to help not-for-profit law centers and advice services that are threatened by the governments plan to cut legal aid. References Justice for All, 2010. Saving Justice, Where next for Legal Aid. Available at www.justice-for-all.org.uk/dyn/.../j4a_Legal-Aid-reform.pdf [accessed 12 Dec.2011]. Ministry of Justice, 2011. Legal Aid Reform in England and Wales: the Government Response. Available at www.justice.gov.uk/downloads/consultations/legal-aid-reform-eia.pdf [Accessed 11 Dec.2011]. Ministry of Justice, 2010. Consultation Paper CP12/10 Proposals Legal Aid Reform in England and Wales: the Government Response. Available at www.justice.gov.uk/consultations/.../legal-aid-reform-consultation.pdf [Accessed 10 Dec.2011]. Ministry of Justice, 2009.Response to Consultation, Legal Aid: Refocusing on Priorities Cases. Available at www.justice.gov.uk/consultations/.../legal-aid-refocusing-on-priority-. [accessed 12 Dec.2011]. National Aids Trust, 2008. Proposals for Reform of Legal Aid in England and Wales. Available at www.justice.gov.uk/downloads/consultations/list-of-respondents.pdf [accessed 13 Dec.2011]. Omonira, R. 2010.Why the Changes Are Bad. Available at guardian.co.uk [accessed 12 Dec.2011]. Sound Off For Justice and Just Rights, 2010. Not Seen Not Heard, The Impacts of The Proposed Legal Aid, Sentencing and Punishment of Offenders Bill on Children And Young People. Available at www.soundoffforjustice [Accessed 10 Dec.2011]. Read More