As shown in president Linda Lee’s excellent summary piece it is clear that the government has a simple arithmetical problem (over and above the deficit itself). The debate on legal aid today in parliament will have to address a sum that does not add up.

Legal aids cuts + Jackson/Young review = access to justice disaster.

This problem is especially pronounced for clinical negligence claims.

As with all good disaster movies however, it is first necessary to set the scene with some general points which bear repetition with each and every MP in the country who is going to be involved in the debates on this issue.

First, it does seem to me that the coalition government – despite being in its infancy – already risks repeating the very mistakes it criticised in the Labour government for when in opposition, namely not listening, not understanding, and picking on supposedly weak targets in carrying policy into effect on this issue. Does the government appreciate that there is a ‘double whammy’ hit of both the cuts and the Jackson/Young proposals on access to justice? Is this a case of those who understand the law and constitution become lawyers, and those who don’t become MPs and ministers?

Secondly, it seems clear to everyone except the Ministry of Justice, that there is no point in having a justice system if we as citizens have no practical access to it – that would be a breach of the fundamental constitutional basis for any state, that we as citizens give up our individual rights to the state in return for a way of enforcing those, that is, the justice system. Indeed, access to justice is not just part of David Cameron’s ‘big society’, but in fact is a marker of what I have always known as a civilised society.

Thirdly, European law is quite clear that in order to comply with their obligations, member states must have effective and independent justice systems, and only within the last two weeks the European Justice Commissioner has signaled a very clear intention to introduce minimum levels of legal aid provision which all states – including the UK – will have to adhere to. Our government is clearly swimming against the tide upon this issue generally, and risks successful challenges under domestic and/or European law (note to government: rather ironically, any judicial review of these decisions will likely have to be paid for out of legal aid funds).

And finally, what can we now expect of a ‘consultation’ – which the present government would do well to remember became a by-word for rubber-stamping exercises under the last government – from a government whose health and safety adviser, Lord Young, can confirm there is no such thing as a compensation culture in this country, only a perception of one, and then perpetuate that myth by referencing all proposals for legal reform under the report headings ‘compensation culture’?

Applying that background specifically to the proposal to withdraw legal aid from all clinical negligence claims, produces the following more specific points.

Crucially, to solve a problem you must first have a problem – in clinical negligence cases, as per the government figures standing behind the green paper, the success rates for clinical negligence cases has increased to 91%. Therefore on the basis that legal aid funds only pay for unsuccessful cases, clearly we as lawyers are doing a better job at pursuing meritorious cases and so driving down the costs to the legal aid fund. Add to that the average costs of unsuccessful cases have decreased 69%, and one may wonder what the problem is the government has with funding clinical negligence cases via legal aid.

Following on from the above, the problem the government has – in many different respects – is that it funds the NHS, which sometimes injures people negligently, legal aid may fund their case and then the government has to pay the compensation. If you make it practically impossible for patients to sue the NHS by withdrawing funding, you in effect as a government/NHS put yourself above the law. There seems to be an inherent conflict of interests for the government, and therefore abuse of power situation to be created, which no-one appears to have yet focused on, opening up further avenues for successful challenge under domestic and European law.

Most importantly, cutting legal aid for clinical negligence cases will affect the most vulnerable of claimants in clinical negligence – severely disabled children, the bereaved, children generally and those who lack mental capacity. This cannot be part of the coalition government’s stated plan to protect the most vulnerable from its cuts?

Buried deep within the impact assessments attached to the green paper – which are cunningly not stored on-line with the green paper itself – are the figures behind the cuts. In terms of clinical negligence work, the net cost, that is presumably of unsuccessful cases, to the Legal Services Commission in 2008/09 (the figures the government quotes) was £17m. It cannot be that anyone has looked at that aspect of the impact assessment and done a proper cost/benefit analysis. If the costs are access to justice for some of the most vulnerable in Society who have been injured by the negligence of the State/the NHS with the potential political and constitutional costs of that, and the saving is £17m or 0.7% of the total legal aid budget of £2.3bn to contribute 0.01% to the £150bn deficit, surely that cannot be worth it? Is the government only looking at bald numbers and not the implications of those?

In summary it would appear that the government either does not understand the combined implications of the legal aid cuts and Jackson/Young review in regard to conditional free agreements and access to justice, or it does not care. They can either cut legal aid or tamper with CFAs, but if access to justice is to prevail as it must, they cannot do both.

Either the government does not understand the true implications of its proposals to cut legal aid for clinical negligence (and other) cases, or it does not want to listen when this is pointed out – or most dangerously it neither understands nor wants to listen.

For us as a profession, now is the time for us to stand up for access to justice, on the firm basis that in fact the government needs us more than we need them. Without us and an effective justice system, they erode the very democracy which puts them into power, and keeps them there. If we do that, and educate the general public, they will also have the voice to fight these cuts and lay bear the truth behind the oft quoted spin of the ‘compensation culture’ and ‘self-serving lawyers’. We are simply the servants of our clients and the justice system, just as MPs and ministers are servants of the people.

As Lord Neuberger MR aptly reminded the government only a few weeks ago – the justice system is the third branch of Government, and therefore in terms of their proposals the other two branches, the executive and legislature, should proceed cautiously if they are to avoid the same perils that beset the last government. In Not Listening/Understanding v Déjà Vu [2010] Court of Public Opinion & Constitutional Niceties – the jury’s still out.

Paul Rumley is a partner in the clinical negligence team at Withy King