The government’s claim that legal aid is a drain on the public purse is fiction, says Geoffrey Bindman
We await the government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 eagerly, but we cannot be optimistic that it will reverse the cuts imposed on legal aid, let alone extend it to a level which comes near to achieving equal access to justice. Meanwhile, an international initiative is being launched to identify the economic benefits of legal aid and how to verify them. If it is the case—which seems almost certain—that the consequence of denying legal aid is to increase public expenditure, the justification for legal aid cuts is demolished.
Economic illiteracy
For years, successive governments have starved legal aid of adequate funding, confident that widespread scepticism at pleas of poverty from lawyers will protect them from popular criticism.
Governments have repeatedly been warned that denial of legal aid causes intolerable hardship and injustice. Lord Thomas of Cwmgiedd, Lord Chief Justice until a year ago, recently told The Guardian: ‘We have to restore advice and representation otherwise we are undermining the rule of law. Without legal aid, people are being deprived of access to justice.’
This ought to be enough to make it a priority for public expenditure. But we know that even such moral and constitutional imperatives are subordinate to saving money.
But what if cutting legal aid does not save money? It is becoming increasingly obvious that denial of legal aid is not only harmful to those who cannot obtain it. It is also economically illiterate. It ignores the savings which legal aid delivers in other public services. Denying legal aid to those who need it may cost the taxpayer in the long run more than it costs to provide it.
Substantial savings
Proving this case is difficult. Up to now the absence of sufficiently precise and compelling evidence has enabled governments to maintain the fiction that legal aid is a drain on the public purse.
Two recent reports have argued the case with apparently little impact.
In 2014 the report of the Low Commission, Tackling the Advice Deficit, chaired by Lord Low, with Amanda Finlay, much respected former director of legal services at the Ministry of Justice as vice-chair, made a series of strong recommendations for reform. It pointed out that ‘the provision of advice and legal support can have a major beneficial impact on the lives of service users, resulting in savings down the line to the state, as well as increased income for clients’. It gave examples of situations in which those without legal support make demands on social services, the cost of which is borne by the taxpayer.
In 2017, The Right to Justice, the final report of the Bach Commission, chaired by Lord Bach with the late Sir Henry Brooke as vice-chair, made the same point. It claimed that early legal advice helps to prevent homelessness and family breakdown. It also cited evidence from the Discrimination Law Association that ‘the provision of initial advice enabled many claims to be resolved without the need for litigation.’
In 2010, Citizens Advice estimated that for every £1 spent on legal aid, the state saves: £2.34 from housing advice; £2.98 from debt advice; £8.80 from benefits advice; and £7.13 from employment advice.
The Citizens Advice and other studies are examined in detail in an appendix to the Low Commission Report entitled The business case for social welfare advice services by Professor Graham Cookson and Dr Freda Mold of the University of Surrey.
Proving the benefits
If it is really the case that improved provision of legal advice and legal representation can achieve such savings, the determination of government to persist in restrictions and cuts seems almost criminally irresponsible. How does it happen? One reason lies in the culture and organisation of government. The Bach report points to the failure of cross-department collaboration: ‘The responsibility for meeting the requirements of the right to justice must not sit with the Ministry of Justice alone. Every department should consider how the quality of its decision making impacts on the right to justice.’ Clearly departments concerned with health, housing, and social welfare should be pressing to reduce the impact on their budgets of lack of legal aid.
Though the existence of economic benefits from legal aid is clear enough, their exact extent is not. In October 2018, the International Bar Association (IBA) published at its annual conference in Rome, with much UK input, a Guide on Legal Aid Principles in Civil Administrative and Family Legal Systems. Principle 1 in the Guide is: ‘Legal aid service delivery generates significant social and economic benefits. In the budget formulation process governments should estimate the social and economic costs and benefits of legal aid service delivery, including by taking into account the social and economic costs of failure to deliver services.’ Plainly this is not happening.
To fill the gap, however, the IBA and the World Bank have launched a new project to prove the economic benefits of legal aid. The project will rely on the acknowledged research expertise of the World Bank. Lucy Scott-Moncrieff, former president of the Law Society of England and Wales, leads on behalf of the IBA, and is happy to provide further information (LScott-Moncrieff@scomo.com). The new report will be published at the next IBA conference at Seoul in October 2019. It is an ambitious project and time is short. Those conducting the project are calling for information and comment to ensure that ‘the final report is comprehensive, relevant for jurisdictions of all types and traditions, and of use to all governments and policy makers in developing or reforming their legal aid systems.’
So far as the UK is concerned, the most valuable evidence is likely to be from those who have been denied legal aid and from the public authorities who have incurred expense in remedying the consequences, whether through welfare and unemployment benefits, the cost of housing and health care, and additional burdens on the police and criminal justice system. The project is greatly to be welcomed, because the more evidence available to strengthen the case for proper funding for legal aid the better. But, the government already has as much evidence as it needs to justify a substantial injection of cash. It has no excuse for delay.
Sir Geoffrey Bindman QC, NLJ columnist & consultant, Bindmans LLP.
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