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Sandra Davis' Week: Access to justice

Date:20 AUG 2010

Sandra DavisThe Ministry of Justice has committed to reducing its annual expenditure from £9B to £7B. It won't escape the attention of most readers that the difference is identical to the amount of the annual Legal Aid budget.  

It seems that the prison service, which costs £2.4B to run each year, is viewed as off limits. Although with Sir Ian Gilmore's calls for a review of misuse of drug legislation likely to appeal to the Liberal Democrats, there may be significant savings around the corner if drug abusers are offered therapeutic input rather than a spell in prison.

Instead of imaginative solutions to cut expenditure, the beady eye of the axe wielders has been trained on the relatively easy target of the Civil Legal Aid and Court Service budgets.

I have written previously about the impact of the planned closure of 30% of our Magistrates and County Courts currently under review. Recent changes to the way legal aid is to be delivered, by whom and to whom, will have an ever greater adverse effect on the most vulnerable and needy.

In one fell swoop the number of Family lawyers able to offer legal aid has been reduced by 45% from 2400 to 1300. The smaller practices solely or mainly reliant on legal aid will either go to the wall or, if they can, be forced to merge with the larger firms who were, apparently, favoured in the tender process.

Indeed, I understand that around 20 firms who have never previously undertaken international abduction work have been granted contracts to take on these cases from October. This is despite the fact the Lord Chancellor's Department has neither accredited them nor invited them on to its panel.  Meanwhile, a number of firms, including my own, which had for many years undertaken specialist work in abduction and / or forced marriage, are no longer able to take on these cases because they constitute such a small part of our practices.

Obviously the grand plan is for the number of contracted firms to be reduced further. The survivors will become larger and larger, populated not with solicitors but with unqualified staff to whom work can be leveraged down at a lower and lower cost to the public purse. Sausage factories may appeal to the Treasury, but I doubt clients eligible for free advice and assistance will be overly impressed at receiving cut price representation.

The situation is bleaker still for clients in rural areas who will have to travel further afield to find a firm that offers legal aid; and hope their spouse or partner didn't get there first.

The answer, according to Kenneth Clarke, lies in private insurance against legal proceedings. This may have some appeal for the vast majority who are ineligible for public funding and who have the foresight to insure against the legal costs associated with family litigation. But this type of insurance is likely to be pretty low on the list of priorities for the very people that legal aid exists to protect - those who have very low incomes or are unemployed or retired.

Legal Aid was introduced in 1949 following the recommendation of the Rushcliffe Committee that equality of access and the right to representation before the law was fundamental to a just society.

The obvious consequence of the measures being implemented by the Legal Services Commission is that our society will become less fair.

Sandra Davis is a Partner and Head of Family at Mishcon de Reya. She is a member of the firm's management board, a Fellow of the International Academy of Matrimonial Lawyers, the author of International Child Abduction (Sweet & Maxwell, 1993) and a member of the Lord Chancellor's Child Abduction Panel. In 2009 she was shortlisted in the Citywealth Magic Circle Awards as a Leading Lawyer.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.