Here is an edited extract from a speech I gave on 11 July in response to the Ministry of Justice’s consultation paper Transforming Legal Aid, ie reducing provision. Note – I regulate the Bar, I do not represent them, and I base what I say on the statutory regulatory objectives for the legal profession.
“Our system of judicial review, which it is proposed will be cut back, enables every citizen to challenge officialdom. Even when the chances of a successful judicial review are slight, the shadow of it creates a climate in which officials know that they must stay within the legal boundaries and observe human rights; otherwise, they will be brought to book. Any diminution of this, no matter how severe our national financial situation, must be treated with the utmost seriousness. That is because everything we do, especially in this House, is built on our centuries-old acceptance of a functioning rule of law that is there to defend and protect all of us. Judicial review is like knowing that the policeman is on the beat somewhere—if only.
The recent peddling in the media of the notion of greedy lawyers and litigants drunk on public money obscures a fundamental principle of our system. The reality is the perception that government can use cuts in legal aid to reinforce the application of unpopular policies by choking off challenge and redress. How are people going to be able to challenge medical negligence, housing problems and treatment in prison? The silence that will fall as the proposals are implemented might allow future Governments to say that problematic policies have, in fact, succeeded because they were not challenged—it will have become impossible to challenge them.
Of course the Government needs to save money. Here we are talking about £220m pa, although some say that the sum does not take account of recent falls in the outlay on legal aid. This sum pales when one thinks of, say, expenditure of taxpayers’ money on council credit cards and failed NHS IT systems, or Apple and Vodafone not paying tax. Shave a little off HS2, and we would have it, although the profession has in fact come up with other ways of saving money that would render unnecessary the Ministry of Justice proposals. It is not helpful to compare our legal aid expenditure with that of other countries because they have inquisitorial systems whereby the work equivalent to that carried out by our barristers is done by officials before the court hearing. Those costs have to be on the state balance sheet somewhere. They could be cut by putting more of the legwork of an offence trial on to other organs of the state. They could be cut by reducing the outflow of new criminal offences from the legislature. They could be cut by removing some children’s cases from the criminal system and shifting them elsewhere. The organisation Justice has calculated that releasing around 6,500 prisoners from custody every year would make up the necessary savings in the justice system. We need to take a holistic view of expenditure. We need to know whether the Ministry has calculated the additional costs that would be incurred if its proposals were to be implemented, quite apart from the broader balance of social benefit and detriment. I am not convinced that the deep calculations, allowing for the slowing down of the legal system and more failed cases and appeals, have been carried out or revealed. The knock-on effects may well wipe out the savings.I hope that the Minister will bring forward a proper impact assessment of what the cuts will really save and what they will not save.
There is a clear risk to the most vulnerable and even the middle class in society. A legal aid threshold of £37,000 per household is unsubtle and will lead to defendants not having equality of arms when representing themselves against the police and a barrister acting for the Crown on the other side. Nor is there provision in the proposals for vulnerable defendants who simply cannot cope on their own. What of the impact of cross-examination on his alleged victims by an accused acting in person, about which we read so much in the media? Prisoners are to lose legal aid in relation to what happens in prison. The consultation is possibly over-optimistic in stating that the prisons complaints system can replace legally aided advice for prisoners. I have heard estimates that the complaints system is as expensive, if not more so, as using a solicitor. Going for the cheapest provider ignores the reality that defence lawyers have to work with the individuals they represent; they have to work at weekends and be ready to deal, by definition, with the weakest members of society and cope with their wider problems.
I am particularly concerned about the tapered fee proposal. We are all innocent until proven guilty and have the right to plead innocent and face trial. That is not inefficient; it is the rule of law. There must be no influences brought on a decision to plead guilty, such as a higher fee for the adviser or the inability of a solicitor to conduct a trial if the client were to plead innocent. The client, even now, should be inquiring of his or her representative as to whether that representative has any interest in an early guilty plea.
It is irrational to propose, as the Ministry has done, to reduce fees on a daily basis if the trial is a long one. The number of witnesses may be necessary, the jury may take time, and the legal arguments and cross-examination may be complex. Imagine a health system in which the longer the operation takes, the less the surgeon will be paid per hour!”