“Our proposals protect legal aid where it matters most. It must be available where people’s life, liberty or home is at stake”
Justice Secretary Ken Clarke, writing in The Guardian, 20 December 2011
Cathy Newman checks it out
Their lordships are revolting. The object of their fury? Ken Clarke’s attempts to slash the legal aid bill. Some Conservative peers say the government’s reforms of the system will hit some of the most vulnerable.
Ministers insist the neediest will still get free or subsidised legal help, but that the £2bn spent annually on legal aid has got to be cut. Over to the team.
Ken Clarke has to cut the Ministry of Justice’s budget of £9bn by £2bn. He plans to recoup £350m of it by culling England and Wales’ legal aid budget – which he’s keen on telling us is larger than anyone elses in the world, apart from Northern Ireland.
FactCheck has previously proved him right about this.
The annual bill for legal aid is £2bn, and latest data from the Council of Europe shows that England and Wales spent 34.5 euros a head on legal aid – or 0.15 per cent of GDP in 2008. The median is 1.7 euros.
But according to the Ministry of Justice (MoJ), England and Wales grapple with more civil and criminal cases than any other countries analysed.
Not only do we have more cases than most countries, but we have a high number of legally-aided criminal cases – and it’s these that are the “most important single driving factor of higher expenditure” for the MoJ.
In fact, a third of the entire legal aid budget – around £700m – is spent on the most serious criminal cases, such as terrorism and fraud – which only account for 10 per cent of all civil and criminal cases.
Indeed, Steve Hynes, director of Legal Action Group, told FactCheck that less than 400 of these cases cost the taxpayer a total of £125m in 2009.
The case for cuts
So why is it then, that Mr Clarke is clobbering the legal aid budget for civil cases rather than trying to scale back the huge cost of criminal cases?
Experts agree that Mr Clarke is hitting the civil budget “disproportionately”. Of the £2m legal aid budget, £1.2bn is spent on criminal cases and £985m is spent on civil cases.
So criminal cases cost more, and yet the criminal budget is only facing cuts of £70m, while the civil budget is being curbed by £240m.
Why? Professor Alan Paterson of Strathclyde University told FactCheck that it looks like the government is targeting civil legal aid because it’s an easier option.
In criminal cases the right to legal aid is protected under the European Convention of Human Rights – as people’s freedom is at stake. In civil cases, such as employment, divorce or benefits cases, freedom is unlikely to be an issue – so the Human Rights Convension and therefore the Human Rights Act offers less protection, except in cases such as domestic violence and child abduction.
Cutting more from the criminal aid budget without triggering a slew of Human Rights challenges would be tricky – especially within this parliament. But it’s not impossible – the Scottish have done it.
All this means that because of the Human Rights Act, all sorts of civil legal advice on employment, debt, immigration, welfare benefits and housing will be abandoned under Ken Clarke’s reforms.
Of the £280m in funding cut from civil legal aid – £130m will come from the Legal Help (advice only) and £150m from legal representation.
And that leaves ordinary people with everyday concerns, bereft of legal advice. The government expects some 600,000 people to be affected, and Mr Hynes of Legal Action Group told FactCheck that many of these will be among society’s most vulnerable – disabled people or those on lower incomes.
Mr Hynes told FactCheck: “Ken Clarke doesn’t really get civil law – he doesn’t get the importance of benefits advice or specialist legal advice – it is extremely complex.”
A Ministry of Justice spokesperson told FactCheck: “Our measures target legal aid at the people who need legal support the most, and on the most serious cases. Civil cases will continue to have to satisfy the public interest before being funded, as they do now. And criminal legal aid will continue to be available for those who cannot afford it themselves when facing prosecution by the state. We believe it is in the public’s interest that they should receive fair justice.”
Cathy Newman’s verdict
As civil claims will shoulder 80 per cent of the legal aid cuts, the Justice Secretary’s claim that the neediest will be protected is highly questionable.
In fact, 600,000 people will lose their free or subsidised legal help to sort out their benefits, job or family problems.
The analysis by Emma Thelwell