When it comes to attacking legal aid, our new Lord Chancellor has form

James SandbachWhen it comes to attacking legal aid, our new Lord Chancellor has form, argues James Sandbach

The appointment of Liz Truss as Lord Chancellor has raised a few eyebrows, given her relative inexperience and lack of connection either to the world of law and legal policy, or the practice of law. Despite section 2 of the 2005 Constitutional Reform Act which requires the Lord Chancellor to be ‘qualified by experience’, it is now generally accepted the role is one of an ordinary ‘jobbing’ Commons Minister, delivering government objectives. In her first conference speech as a Cabinet Minister for DEFRA in 2014, Truss said she would ‘not rest until the British apple is back at the top of the tree‘, and her own ascent to the top of our constitutional tree has likewise been remarkably swift. Many a legal eye will be watching how she measures up in the role, including whether she will continue with Michael Gove’s penal and prisons reforms, court modernisation, his controversial attempts to reframe (or ‘repatriate’) human rights debates within a common law tradition, and whether Gove’s modest “olive branches” to the professions will stay or wither on the vine.

In fact, Truss is more than familiar with one issue now facing the Ministry of Justice – the problems and challenges now facing legal aid. Many pressures will now be on the minister who will have responsibility for triggering ‘the post implementation review’ of LASPO. Not only was Truss on the Justice Committee which undertook an inquiry into the government’s original proposals, she was also on the bill committee which undertook the line-by-line scrutiny during Commons stages of the bill, so she will be aware of some of the issues.

The Justice Committee’s inquiry – which politely described the government proposals to restrict the scope of civil legal aid as a “severe challenge” to the justice system – undertook a pre-legislative review of the legal aid cuts. In a committee of split political opinions, it was clear that Truss was eagerly on the cutting side of the argument. The result was a report that while highly critical of the reforms and the lack of evidence behind them, nevertheless had to pull its punches, in order to satisfy the most vocal supporters of legal aid cuts from among Conservative members of the committee. There were many feisty exchanges in the Justice Select Committee, particularly between Truss and witnesses giving evidence and making the case against such severe scope cuts. Armed with only the top-line figures on legal aid spend, Truss assailed witnesses about the unsustainable cost:

Legal aid in England and Wales is the highest per capita in the world…What is the key driver that is making legal aid so expensive?…. £2 billion is a large slug of money—and it is the kind of spending we do need to reduce across Departments…. Where can we find savings? etc. 

So on to the legislation, and at the second hearing of the bill committee, Truss pressed witnesses over the comparative costs of legal aid in much the same way as she had done a year earlier on the Justice Select Committee:

I want to return to the issue of the scope of legal aid. Is it not the case that in other countries with similar legal systems, such as Canada, New Zealand and Australia, there are much lower costs per head of legal aid, the scope is much narrower, and the eligibility for legal aid is much lower? My understanding is that at roughly £10,000 income you do not receive legal aid in those countries. Is the British system not pretty generous in terms of the eligibility for legal aid and the scope that is being proposed under this bill?

 Dismissing arguments that this was not a like-for-like comparison, Truss pressed on to attacking the cost of using lawyers to tackle social ills.

Britain has one of the highest legal aid bills per capita in the world. One of the reasons for that is that a lot of issues, which would normally be dealt with in other countries through standard appeals procedures or through non-legal advice, end up being dealt with by lawyers. You mentioned the specific case of welfare. Is it not the case that, in order to get welfare claims properly dealt with, there are appeals procedures in the welfare system, there are other sources of non-legal advice that women could go to, and, in fact, all we are doing by involving lawyers is just ratcheting up costs and not actually benefiting the end recipients?

As the minister now in charge, Truss needs to look not just at the costs of legal aid but also the benefits. As a former director of Policy Exchange and one of the new breed of Conservative Oxbridge high flyers keen to promote an educational reform, social mobility and life chances agenda, Truss has championed initiatives to improve numeracy in schools, encourage post-16 take-up of language and science subjects, flexibility to take on second jobs, and market reforms to secure better value for money in childcare provision. The life chances and tackling inequalities agenda is now the overriding theme (while not dealing with Brexit) of Theresa May’s new government.

The new rhetoric and aspirations around improving life chances is attractive and welcome to anyone concerned with inequality. But to translate aspiration into both policy and action, there is a clear role for law, and, yes, for legal aid. There is also a role for public legal education, including in challenging school exclusions and SEN decisions, rogue landlord and employer practices, supporting discrimination claims, using tribunals to challenge unfair welfare or other public services decisions, and providing debt relief remedies and consumer redress. So, our new Lord Chancellor can either continue in the Grayling tradition of attacking lawyers, or take more a Gove-like approach of harnessing law to improve social outcomes.

 

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