The government’s consultation on its Proposals for the reform of legal aid in England and Wales has provoked an entirely predictable wave of protests from legal aid practitioners and those, such as free legal advice centres and citizens advice bureaux, that take up the slack whenever legal aid is restricted.

A commercial practitioner might be forgiven for thinking that this has no direct relevance to them.

However, restrictions on the legal aid system impact negatively on commercial practitioners and their clients in a number of ways.

This is not simply the well-worn jurisprudential argument about access to justice in a democratic society and the meaning of ‘justice’ when the balance of power is uneven.

There are also practical reasons why restrictions to legal aid cause problems in the commercial field.

Effectiveness of legislation

The effect of legal aid has been to ensure that individuals at the low-income end of society are able to enforce the rights that have been framed for them by the legislature.

Without this ability to enforce them, the rights become much weaker, whatever the legislation may require.

Most commercial enterprises which deal with unsophisticated consumers are careful to treat them in a fair and legal manner, because that is the right thing to do.

However, there are certainly some ‘rogue’ enterprises that take that route purely because they would be sued if they did not do so.

If the threat of litigation is removed, because the consumer has no practical method of enforcing their legal rights, the rogue enterprise becomes substantially more comfortable with behaving unfairly – comfortable that, whereas they may be acting outside the letter of the law, the lack of enforcement means that in reality the law allows them to act in this way with impunity.

This situation often gives rise to increased regulation, as legislators see that existing laws are not having the desired effect.

As commercial lawyers, we may find ourselves advising clients on ever more complex regulation, and whereas in one sense this may generate legal fees, it also gives rise to frustrated clients whose profitability is adversely affected.

Rise of the litigant in person

There is no doubt that there are real costs and difficulties for a client who is facing a legally aided litigant.

However, the problems with dealing with the legally aided litigant are exacerbated when that litigant becomes a litigant in person, and there is no doubt that reducing legal aid will increase the number of litigants in person.

As litigants in person are given very wide leeway by the courts and are allowed to miss deadlines (often by years) to which other parties must adhere, costs and uncertainty rises.

Their tendency to misunderstand the procedures and bring claims in the wrong place or of the wrong type is also a burden.

As well as the added costs involved in dealing with a claim by a litigant in person, from a practitioner’s point of view they can be extremely frustrating to deal with.

They rarely receive clear legal advice, which may explain why they have no legal remedy, and, not unreasonably, will not listen to their opponent’s advisers on this issue.

Clearly, it is an advantage for a paying defendant to be dealing with a properly advised plaintiff.

An increase in the number of litigants in person not only causes great problems for the courts but great costs and uncertainty for defendants – and a significant headache for their solicitors.

The loss of legal aid affects us all, not simply as part of a wider moral question, but in more immediate, practical ways.

Litigators will find themselves contending with more litigants in person, and non-contentious lawyers may well find a significant increase in regulation.

None of this is good news for clients, and as such is unlikely to be good news for practitioners.

Rosalind Connor is a partner and head of pro bono at Jones Day