Included in the government’s consultation paper, Transforming legal aid: delivering a more credible and efficient system, are fee cuts for civil legal aid cases. LAG believes that this is a breathtaking betrayal of trust by the government. Civil legal aid practitioners have had to absorb draconian cuts to scope introduced under the LASPO Act, plus a ten per cent reduction in fees introduced last year. In good faith they applied for new contracts from 1 April this year under new terms only to be told, eight days after these contracts commenced, that the government wished to reduce their fees again by between 10–35 per cent. We fear that if implemented this will have a detrimental impact on legal aid providers, who need some stability after the radical changes of the past two years. If the government imposes this cut, it will risk squeezing out of the system more good-quality firms and the few remaining not for profit organisations.

It is clear also from the proposals that the government seems intent on increasing the exclusion of the most vulnerable from access to justice and to justify this by peddling stories about the usual easy scapegoats allegedly abusing the system. The proposal to withdraw legal aid for prisoners illustrates this. Chris Grayling the Justice Secretary says that he is ‘appalled’ that prisoners can bring ‘unnecessary legal cases’ that could be dealt with by the Prison Service’s internal complaints process. An internal procedure is no substitute for the external scrutiny of the courts: we fear that vulnerable groups of prisoners, such as children and those with mental health problems, will suffer if they have no access to a lawyer. The proposal to cut legal aid for prison law cases jeopardises humane treatment of prisoners in the prison system and in the arrangements made to supervise them after their release, which are an essential part of their rehabilitation.

A number of organisations have observed that the proposal to remove legal aid for foreign nationals undermines the rule of law. We agree. Equality before the law can only be guaranteed in our adversarial system if a person has access to advice and representation. Cases involving trafficked persons who do not qualify to claim asylum and people who cannot prove their immigration status would be prevented from receiving a fair hearing. The proposed residence test will also be difficult to administer for practitioners without a detailed knowledge of immigration law.

To justify its plans to restrict further access to judicial review, the government has deliberately misrepresented the statistics for the number of successful claims. The Public Law Project has done an excellent job in exposing this and the government’s failure to recognise that cases are often settled at an early stage due to the strength of the applicants claim. LAG believes that the judicial review procedure is an important remedy to hold state institutions to account, particularly at a time of cutbacks in public services and the resulting failures of state institutions to uphold people’s rights.

LAG is concerned that there is a growing reluctance on behalf of legal aid lawyers to assist clients with cases which have less than a very high, ie, 70–80 per cent chance of success because of the limitations on the number of matter starts. Also, it is difficult at the outset to assess accurately the chances of success in a case. The law, especially in an adversarial system with constantly evolving case-law, is not an exact science. A 50:50 chance of success would seem reasonable for a citizen to be entitled to public funding to seek redress, and for this reason we do not accept the government’s proposal to adjust the merits test for ‘borderline cases’.

The changes to the scope and qualifying conditions for civil legal will ‘save’ only a few million pounds, which is a drop in the ocean in terms of government expenditure. If they are implemented, though, these changes will exact a higher cost in terms of human misery for the people denied access to justice. We hope that the government will recognise this and think again.