Life after legal aid: the fightback begins
From The Guardian - There is a link between the welfare reform bill and the legal aid, sentencing and punishment of offenders (Laspo) bill, and it is not simply the inspiring challenges that the Lords have made to both.
At the moment, someone denied a benefit can obtain free legal advice on whether, and how, they should appeal to a tribunal against the refusal. The success rate for appellants is high, and even higher if they have received legal advice.
The welfare reform bill introduces changes to welfare benefits that are bound to lead to mistakes and injustice on a massive scale - and with dizzying symmetry, Laspo completely removes welfare benefits cases from the scope of legal aid, and creates drastic cuts to other areas of social welfare law. The battles to modify the worst elements of both these bills are not over yet, but those of us in the justice business are already turning our attention to the next fight - that of ensuring that access to justice is not lost with the demolition of social welfare and family legal aid.
One of the reasons for passing the Legal Aid Act 1949 was a recognition that the increasing complexity of life made the existing ad hoc patchwork of voluntary, pro bono and charitable provision unacceptably inadequate. Sixty-three years later, life is no simpler nor the law any easier, but modern views on equality and justice are very different - and a return to the bad old days of unchallenged injustice and unacknowledged suffering is surely impossible. For example, the modern realisation that people with disabilities are as entitled to participate in society as everyone else has transformed our understanding of the need to make the adjustments necessary to allow that participation to take place.
Much of the cost of this is publicly funded, and it seems unlikely that our society would allow government cuts to reverse the recent progress we have made in this area. So what are we going to do? Upholding the rule of law is part of the legal profession's DNA, so solicitors working in and for their local communities will continue to undertake pro bono work, as they have always done and no doubt charities and advice agencies will also do their best to meet the new needs.
But if this was not enough in 1949, it certainly won't be now. The proposed cuts require a rethink of how all parts of the profession can work together most effectively to mitigate the effects of the cuts. The Law Society, the representative body for solicitors, is therefore talking to some commercial law firms with a commitment to pro bono social welfare law which have agreed to fund strategic cases against public bodies - including the government, if necessary.
Cases will be wide-ranging and will include challenges to unacceptable performance, as well as to policies or laws that breach existing domestic commitments and obligations under international treaties. The broad and deep knowledge of those delivering social welfare and family legal aid and advice will be essential to identify the issues and provide the necessary evidence for these strategic cases.
If judges accept the importance of these cases in upholding the rule of law, we hope that they will use their powers to make protective and pro bono costs orders, which will achieve a virtuous spiral. Winning a case will not only improve services but also provide funds to support the provision of free legal advice to those who need it. We are piloting a scheme to help disabled welfare benefit applicants, providing assistance at work capability assessments and at tribunals.
We hope this will become a mass participation scheme that will improve decision-making at all levels. We will also, of course, be referring people to their MPs or to ministers, such as legal aid minister, Jonathan Djanogly, who has made a personal commitment to be the champion of individuals using the tribunal service.
Last year Ken Clarke said: "This presentation of what we're doing somehow depriving people of access to justice is I'm afraid one I rather strongly reject."
We therefore look forward to his support for our initiatives. http://www.guardian.co.uk/law/2012/jan/19/life-after-legal-aid