Later this year the States is due to debate new ‘access to justice’ laws, which propose sweeping reforms to the legal aid system, including reducing the eligibility threshold for households with an annual income of £45,000, with certain allowances, to £35,000.
Under the current legal aid system, Jersey lawyers provide free or discounted legal advice to lower-income families, as they have done since the 18th century.
In a letter written last September, the Bailiff, Sir William Bailhache, raised concerns that the proposals would actually ‘reduce’ access to justice and add to a growing number of Islanders representing themselves in court – something he said was ‘not a good thing’.
And on Wednesday, during a Scrutiny hearing with the Legal Aid Review Panel, Sir William restated his views, calling for guidelines produced by the Law Society not to be viewed as a ‘blueprint’ when debated by the States.
‘As a matter of history, lawyers have been willing to give legal aid and have given an enormous service to the Island,’ he said.
‘I wouldn’t want anything I say today to derogate from that in anyway. They have given real service to the community.
‘[But] what I set out in my letter sets out my view of the proposed guidelines. I think that they restrict access to legal aid and, speaking for myself, I think that the outcome will be that more people will be driven to be litigants-in-person and that’s not a good thing.’
He added: ‘I do think that it’s important that people have access to legal advice before they get committed to litigation in court.
‘There is a real risk if they do not have access to legal advice that they will commence proceedings and find themselves later on losing them.
‘[Either] because they didn’t have the right advice to formulate the claim in the right way or they didn’t have the basis for a claim. They then face a very large bill of costs.’
During a further panel hearing on Thursday, Law Society president John Kelleher responded to the Bailiff’s criticisms, claiming that he understood that the number of litigants-in-person had not increased in recent years.
‘It’s not because they can’t afford a lawyer. It’s either because they have come through the legal aid system, where they have been scrutinised by two independent lawyers, and the opinion they are given is that they don’t have a case. Those people can go on to represent themselves,’ he said.
‘Or simply there are other people who don’t want to pay legal fees and do it themselves.’
Law Society chief executive Neville Benbow said that the legal aid system was ‘a tax’ on the Island’s law firms, estimated to cost them around £7 million a year.
‘If you take the Gross Value Added [goods and services produced] of the profession in the last States of Jersey statistics of £200 million,’ he said ‘the cost is around £7 million – that is a 3.5% tax or cost across the board.’
And Bâtonnier, Advocate David Cadin, managing partner of Bedell Cristin, called the legal aid system a competitive disadvantage for Jersey’s corporate law firms in the international market.
‘In a way it’s a tax you are imposing on Jersey lawyers that you are not imposing on the competition,’ he said.
‘The local accountants are not taxed. If the UK law firms are competing in this space and getting into offshore work, they don’t suffer the same tax either. So, we are putting ourselves at a disadvantage, which is not right.’
