Robert Marshall-Andrews

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Good, bad and awful (from The Guardian)

On Wednesday the House of Commons will debate the Access to Justice Bill. The title itself has an ominous, Orwellian ring. A statute which proclaims its own virtue on its masthead requires serious scrutiny, particularly when it extends to 80 clauses, strides across civil and criminal jurisprudence, radically alters funding available to the poor and arrogates to an unelected government appointee (the Lord Chancellor) draconian powers over the administration of justice.

The portmanteau nature of the legislation provides problems for critical analysis. This is compounded by the fact that the central issue (the provision or denial of legal assistance to the poor) will undoubtedly be overshadowed by matters of little substance such as rights of audience to trained solicitors which the Bill, rightly, confers. Such trivia aside, the Bill as social and legal legislation is mixed. Part is good, part is bad and part is awful. The worst will inevitably result in a serious denial of justice to the poorest and will mark the largest ever departure from the principles of the welfare state.

First the good. The Act will create a Community Legal Service. If properly deployed it will cure the brave inadequacies of Citizens Advice Bureaux and voluntary bodies in the areas of welfare, housing, immigration and health. There are caveats. The statute prescribes no qualifications for staff and employs the market semantics of 'accreditation'. But let us be Panglossian. Three cheers.

Now the bad. A Criminal Defence service will be created. 'Accredited" (again) lawyers or para-legals will be employed by the state to defend those charged with all types of crime which the state itself may decide. The stark danger to civil liberty needs no amplification. Let us avoid exaggeration. At worst this is the way to the gulag but at best it is designed to create defence lawyers over which the state can exercise control. Such power would be anathema possessed by any minister or department. In the hands of an unelected appointee with no direct accountability to elected members of parliament, it affronts the most elementary principles of liberty.

Finally the awful. In all cases involving personal injury, legal aid will cease to exist. However poor, simple or disabled the victim, however gross or foul the wrong or powerful the wrongdoer, this prop of the welfare state will be kicked away as a political gesture to the perceived interests of middle England.

That is not a polemic. There can be no other motivation. The existing system is the most efficient of all public services. Of A220 million spent per annum, 80 per cent is recovered from costs of unsuccessful defendants, a figure which, in itself, pays tribute to the integrity and quality of the advice. The total net cost is even less, as the damages remove victims from welfare and their families from the famous dependency culture.

In place of this noble and efficient service comes the principle of no win no fee, the despised stock in trade of the ambulance chasers of America. This repellent type of litigation (with scant variations such as insurance provision) is now to be finally grafted into British law to the incredulity of decent, practicing lawyers and national charities protecting the disabled.

Nor will middle England escape. Galaxy-driving man, beloved child of Thatcher and fostered son of Blair, requires only the factory accident, blindness or incapacity to be reduced to the weekly cat's cradle of anxious benefit. In this condition he will trail the coat of his potential damages from lawyer to lawyer searching for those holding the right portfolio of risk to fund his action. As he does so he will be in permanent danger from the charlatan lawyer enhancing his fees to the maximum and churning the trial system by advising reckless action or early settlement to suit his own commercial benefit. Forget the crystal ball. Go to America.

The equation is simple. This responsibility of the welfare state will be devolved to the legal representatives of the poor who, in turn, in no small extent will recoup their losses from the damages of the injured and the sick. This measure will meet stern resistance in Parliament but it will pass, dragged through the breach behind a populist assault on lawyers themselves.

There are few sensations that cause MPs more pleasure than the belief that they are punishing lawyers. Backbenchers who pass dry-eyed through the lobbies to impoverish single parents or load students with debt need no better alibi for their radical credentials that the famous war cry of Pistol: 'Lets kill all the lawyers.'

Let us hope for the sake of firm, controlled government they do not lose their heads and start with the Lord Chancellor himself.