Limiting legal aid

Baroness Deech

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!”

9 comments for “Limiting legal aid

  1. Lord Blagger
    12/07/2013 at 12:52 pm

    I’m sorry but when you say, “Our system of judicial review, which it is proposed will be cut back, enables every citizen to challenge officialdom.”, you are not telling the truth, and it relates directly to the Lords.

    I FOI’ed the Lords as to how many sitting days Peers went through security. The reason is I’m pretty certain lots of Lords are committing fraud. Given the number of days you go into Westminster, it can be compared against the number of days you claimed. Before this, I FOI’d the security department, as to whether or not peers could get in without it being registered. Their reply was you cannot, as expected.

    First the Lords claimed you had a secret entrance where just peers could get in without being monitored. Then when it was pointed out that either they were lying, or security were lying, they had a problem.

    So they made it a state secret, we aren’t allowed to know, because if we knew it would bring the Lords into disrepute. An accurate statement, given the level of likely fraud.

    So back to your post.

    So can I challenge officialdom with a JR on this matter? Nope. Officialdom has decreed that the will be no judicial review when it comes to these matters.

    I think you need to correct the false statement you’ve made. It’s not accurate.

    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.

    They don’t need to. See the secrecy law and how peers protect themselves.

    You miss the fundamental problem. It’s not legal aid or the lack of it that’s the issue.

    It’s the expense of the monopoly legal system. That’s your problem because you’re one of the people involved. The costs and the efficiencies are such that only the rich, or the legally aided can get redress. For all practical purposes, the rest of us can’t.

    It’s all down to the state running a system that’s too expensive.

    • Baroness Deech
      Baroness Deech
      13/07/2013 at 1:11 am

      A load of codswallop from “Lord” Blagger. Our presence is noted when we are in the chamber. The number of days’ attendance is published, as is the voting record. You can read the details in Hansard. Committee attendance is also recorded.

      • LB
        13/07/2013 at 10:49 pm

        I am not lying. You are the one trying to justify why your attendance record of going through security has been made a state secret by they Clerk of Parliaments.

        The reason is simple. Peers have not been attending for the days they have claimed.

        You can prove that I am wrong by the following FOI request.

        How many sitting days did each Peer peer in a Parliamentary year did each Peer go through security? Just the total for each Peer, I don’t care if it was a Thursday or a Friday, just the total for a year. Pick a year in the past so there are no security issues at all.

        ie. If it a sitting day, you can claim money. If you didn’t attend but claimed, its fraud, section 1-5 2006 fraud act.

        Now were aren’t allowed to know. Its a state secret. I’ve a certificate (and others) to prove it.

        Now there is, contrary to your statement, no appeal. No Judicial review into this what so ever. It’s exempt. Contrary to your made up statement.

        You can’t be in the chamber if you haven’t walked through security.

        • Baroness Deech
          Baroness Deech
          24/07/2013 at 3:51 pm

          Evidence of obsession. You should take a look at the internet. The details of attendance are here – We do not go through security – there are several ways into the House. We are marked on the register by the attendants who see us in the Chamber. Attendance at committees also counts. The fact that all sittings are televised would also help to prevent false claims, if any.

          • Lord Blagger
            24/07/2013 at 4:40 pm

            You are deluded if you do not understand the difference between what you claim (expenses), and whether or not you attended in person.

            That’s why your attendance has been made a state secret. A completely different question from what you’ve claimed.

            Now the Clerk of Parliament’s did try your strategy of trying to imply they are the same thing.

            When it was pointed out they are different questions, his next attempt was to say Peers can get into Westminster without registering a pass, or if on a temporary pass, without any record of that being kept.

            Unfortunately, I had already FOI security and they had replied you can’t.

            So either the Head of Security, or the Clerk of Parliament wasn’t telling the truth.

            So the Clerk of Parliament signed a certificate to say the number of sitting days you’ve attended is a state secret.

            Again, to reiterate. You stated that the Lords can be subject to a JR. You cannot JR a certificate signed by the CoP.

            If you don’t believe me there is a simple test. We can jointly submit another FOI request for a different year, and we can see what the result is.

            The records now go back 6 years.

            I think you will find that you will get a telling off for daring to ask such a question.

            Are you up for the dare?

  2. 12/07/2013 at 12:53 pm

    As a more technocratic sort of person I try to avoid moral judgements in government spending decisions, but legal aid is one where my moral ambiguity hits a serious obstacle.

    If we the people are willing to grant the State the ability to deny a person their liberty, potentially for the rest of that person’s life, then we must also be willing to balance that awesome power by granting the defendant’s an absolute authority to defend themselves and do so to the very best of their ability.

    Curbing legal aid, and for such a petty amount of money (in terms of government spending) is a worrying development that unfairly loads the scales of justice in the State’s favour.

    In terms of morals, ethics, and any other related adjective you choose to use, this is a bad decision.

  3. maude elwes
    22/07/2013 at 3:24 pm

    The Baroness has hit this well and truly on its head.

    Legal aid protects all of us, rich as well as poor. Having no recourse to law because of lack of funds is a serious threat to our civil rights. And we do have them. But, only through our access to the laws of this land.

    My understanding is, and of course I may be well off beam, that ‘legal aid’ is being ‘privatised.’ Now there’s a sense of humour for you. Justice on a sixpence. Clever thinking.

    Members of our judiciary are now expected to race toward a judgement so they can receive a pay off from tobacco companies or Virgin in order to help out the tax payer who foots the bill. (Just what is planned for our tax money to be used for apart from foreign aid, warfare and government fiddles, anyone care to elaborate)

    Chris Grayling is seen as a joke figure. His plan is to relieve the ordinary law firm of funds and hand their begging bowl over to companies, of any ilk, in order for them to foot the bill. LOL. Now where will the ability to select your defender come from? It will remove the meaning of Justice from us all. Dickens couldn’t have conjured such a farce.

    Amalgamated judges must search for companies backing in order to reduce the bill for ‘blind’ justice.

    Lawyers must fight back and the power of the judges is unbelievable, so they must unite to fight for the right to remain uninhibited in their ability to reach decisions vital to the freedoms of the people. Which, after all, is what they are there to do.

    We already are run by a handful of Corporations against our will and via a secret conspiracy, judges, therefore, are the last bastion for civilisation to continue. It is their duty to put themselves on the line for all of us. Go to it.

  4. LB
    22/07/2013 at 9:03 pm

    You’ve forgotten risk.

    If you are poor, you get legal aid. You have nothing to lose.

    If you are rich, you pay the lawyers, and its a tiny fraction of your wealth. You aren’t going lose much.

    If aren’t, you’re screwed. You have to gamble everything.

    It’s back to the core problem. State running a monopoly protected by a closed shop. Keeps the fees up, and rips of the public.

    Fix the cost issue,its the core problem

  5. Baroness Deech
    Baroness Deech
    25/07/2013 at 6:33 pm

    To “Lord” Blagger. More evidence of total confusion on your part, and this is my last post on the subject. The attendance for which we receive a daily allowance is in the Chamber, and that is meticulously recorded and published, at the link I gave you. “Getting into Westminster”, whatever you mean by that, has nothing to do with it.

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