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Neuberger: ‘Very hard to defend’ current legal aid system’

By Monidipa Fouzder

The president of the Supreme Court appears to have compared UK governments to ‘repressive totalitarian regimes’ as part of a scathing attack on legal aid reforms.

Lord Neuberger, who retires this year, told the Australian Bar Association’s conference on Monday that access to justice is a practical, not hypothetical, requirement.

He said: ‘The sad truth is that in countries with a long peaceful and democratic history such as the UK (and, I suspect, Australia), we face the serious risk that the rule of law is first taken for granted, is next consequently ignored, and is then lost, and only then does everyone realise how absolutely fundamental it was to society.

‘It is peculiarly ironic that this is happening at a time when we have never been more concerned to ensure that all citizens enjoy rights.’

Neuberger said it ‘verges on the hypocritical for governments to bestow rights on citizens while doing very little to ensure that those rights are enforceable. It has faint echoes of the familiar and depressing sight of repressive totalitarian regimes producing wonderful constitutions and then ignoring them’.

The government’s record on making money available to those needing legal advice and representation has been ‘patchy’, he said. It was ‘frankly very hard to defend’ the system introduced by the ‘flag-wavingly named’ Access to Justice Act 1999.

In theory, the reform allowed claimants to obtain access to the courts by ensuring they did not have to pay much in costs if they lost and recovered all their costs if they won, he noted.

If that sounds too good to be true, it is because it is,’ he said.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 mitigated ‘some of the more unfortunate consequences’ of the 1999 Act in civil justice, but it ‘also confirmed a severe shrinking’ of legal aid availability for civil law cases and a ‘severe shrinking’ in most private family law cases.

Neuberger continued: ‘Many people, including me, feel that things took a wrong turning in civil legal aid in 1999 and we have all been busy hoping or even trying to put Humpty Dumpty back together again – but like all the King’s horses and all the King’s men, I am not sure that we can do it.’

The 1999 Act was introduced on the back of an assertion that civil legal aid cost too much and ‘there is reason to doubt some of the figures on which that assertion was based’, he added.

Law Society president Robert Bourns said Neuberger’s comments ‘add further weight’ to the central message of Chancery Lane’s LASPO Four Years On report. ‘The bottom line is that cuts to legal aid have had a massive impact on people’s ability to enforce and defend their rights. If you cannot access advice or protect your rights, then effectively they do not exist,’ he added.

Andrew Langdon QC, Bar Council chair, said a ‘complete rethink’ is needed on legal aid availability and sufficiency.

(Courtesy: Law Society Gazette)