UK Considers Possible Negative Impact on Court Operations of Legal Aid Cuts. Discussion of “Polluter Pays”

As you may know, UK legal aid is facing massive budget cuts.  Since even the civil system is an entitlement one (in dramatic contrast to the US), the means the new government (Conservative and Liberal Democratic, both took more than a shellacking at a by election last week) are cutting the case eligibility criteria.  This article points out that the approximately $500 million cuts are less harmful than once thought, because of exemptions, including domestic violence and child protection (meaning that for a significant percentage of the population there is still an entitlement to legal aid in DV cases and those where a child may be taken into what is euphemistically called “care”), and asylum (yes really).

But the cuts are still severe.  So Richard Moorhead, blogger at Lawyer Watch, has raised the question of the impact upon court proceedings of depriving litigants of counsel.

My reading of that is that there has been no assessment of the costs that extra litigants in person [what the US calls the self-represented/pro per/ or pro se] will make to the system. Perhaps I am wrong. It is to be hoped the Ministry of Justice is asked to provide its workings. The Minister mentioned an IT system and a process of demystification to render courts capable of coping with litigants in person. Both those things have costs attached to them: what are they? In any event, it is important to emphasise the dubious efficacy of those things alone – Californian courts for instance have varied programmes of support for unrepresented litigants. What is HMCS planning?

Richard Moorhead goes on to discuss the need for a “polluter pays” model.  I.e. that those making bad decisions should be forced to pay for the cost.  This is, of course, part of the justification for the Equal Access to Justice Act, now facing zeroing out in the House budget.  But the theory could be applied in many other ways, including at the state level.  Richard’s comment follows:

The final point which struck me as interesting was the Minister’s response to the idea that the legal aid scheme ends up picking up the cost of problems created by other governmental bodies. The Chairman, Sir Alan Beith, made the telling point that if the government is serious about behavioural change they should introduce stronger ‘polluter pays’ requirements into government budgets. The Minister’s response was to suggest that the Government is doing this through some recoupment of tribunal costs. I’d be interested to learn more about this, but it seemed to me that this was confined to part only of related tribunal costs and I could not see how this related to advice costs. He also only ever spoke of the problems created by the DWP. Is there a broader polluter pays project? What about the UK Border Agency for instance? If the polluter pays principle has been established, why not make it stronger and encourage real behavioural change on the organisation most responsible for driving legal need: the Government? The Minister suggested that polluter pays is simply robbing Peter to pay Paul. There is some truth in that, but only if incentives do not produce behavioural change. Government departments not required to pay for their mistakes have weaker incentives to not make mistakes. If the government is serious about behavioural change it should apply some of the incentives medicine to itself.

Maybe there are some research opportunities in the UK to study the impact of the cuts (there have been some interesting threshold study of the financial impact of cuts in self-represented court services in the US [linked study includes new and closed programs]).  They have a much better research infrastructure there.  Just look at the website for their Legal Services Research Center (and then, US folks, try not to cry with jealousy.)  Closing thought — why do we not learn more in our US access to justice community about this intellectual investment.


About richardzorza

I am deeply involved in access to justice and the patient voice movement.
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