Wednesday, 8 May 2013

Legal aid proposals threaten British justice

Justice for all on equal terms is the cornerstone of any civilized society and Britain can be proud of its law record but that principle looks set to be undermined if the Government pushes through unamended a second round of money-saving cuts to legal aid, this time aimed at the criminal legal aid budget.

The Government has no choice but to trim its huge deficits and there is no reason why the legal aid budget, now running at over £2 billion a year, should be exempt from examination, for there is undoubted waste and abuse. But the Government should remember that justice is not a for-profit business that can necessarily respond to efficiency drives and that there is a risk that if the proposed changes are not clearly thought through the baby (justice) will be thrown out with the bath water. Indeed, according to Lord Neuberger, Britain's most senior judge, the proposed changes may even lead to higher costs and drive aggrieved defendants to "take the law into their own hands." There is an equally alarming and likely consequence -- an erosion of freedom to demonstrate lawfully owing to financially punitive risks.

Lucy Scott-Moncrieff, President of the Law Society, echoes that view when she claimed: "In several previous attempts the Government has been unable to come up with a workable model for price tendering and we do not see how they will be able to address the fundamental difficulties this time round. We also think it is implausible that tendering will save the sort of sums the Treasury is looking for and there is some doubt that it will save anything at all."

Such comments are probably over egged, for the Government claims that it has already trimmed £350-400 million from the legal aid budget by cutting funding to a range of civil cases, including divorce-related problems, social welfare, debt and housing. But cuts to the civil legal aid budget were an easier nut to crack for they did not undermine justice nor pose potentially very serious consequences. So what is the nature of the threat to justice and why has the criminal legal aid budget, now more than half the total legal aid spend, grown significantly?

First, a look at the historical facts. Legal aid was established by the Attlee Government in 1949, since when millions of people have been given help, advice, support and representation. It ensures vulnerable, disadvantaged people are not denied access to justice because of their inability to pay for it. As such it is one of the corner stones of a fair and decent society. The overall cost of legal aid has grown considerably over recent years, up from £1.5 billion in 1997 to over £2 billion in 2004, in monetary terms, but it has remained steady ever since. There has, however, been a disproportionate growth in the criminal legal aid spend, up 37% compared with the legal advice for representation on civil and family matters, excluding asylum, down 24%.

The rapid growth in legal aid expenditure has been matched by a big increase in the overall number of legal practitioners. Between 1955 and 2004 the number of solicitors holding practice certificates rose from 17,697 to 96,757, an increase of 438%. The increase in independent/self employed barristers over the same period has been even greater, up from 2,008 to 11,564, a 476% rise. It has been suggested that, particularly in relation to criminal legal aid, the number of lawyers is a driver that contributes to increases in the legal aid spend. There can also be little doubt that while some of the cost increases are inflationary and some due to rises in work volumes in certain areas of law, much of the increase can only be ascribed to costs rising significantly above the rate of inflation in the rest of the economy. This rise in criminal legal aid spending has had a corrosive effect of cutting the spend on civil legal aid, particularly family-related issues, which is undesirable for society as a whole.

One of the problems with the criminal legal aid bill is the few but highly expensive criminal cases that absorb too great a share of the budget, so the spread of funding is not responding effectively to demand. It is, however, difficult to see how the cost of these cases can be significantly reduced. Undoubtedly, the crux of the cost problem is an administrative one. The administration overheads of funding numerous firms, many of which do only a small amount of criminal legal aid work each year, are placing an unnecessary financial burden on the system and although attempts have been made through franchising to restrict the number of firms being paid each year, the Government's view is that it is clear that a system where only contracted suppliers would be able to undertake criminal defence work was needed to drive out this inefficiency and introduce quality controls. The solution, suggests the Government, is a few, maybe four, super contractors covering a whole county who would be chosen on the basis of price, irrespective of their ability, but what would be the unwholesome consequences of such action and are there less onerous solutions?

Unless amended or rejected in its entirety the Government's proposals would mean defendants would lose the right to choose the solicitors they want to represent them in legal aid cases. This is crucial, on which more later. Criminal defendants living in households with disposable incomes of £37,500 or more would be stopped automatically accessing legal aid. The Government wants to introduce "plea only" advocates. In other words the lawyer who represents you in court is only able to represent you if you plead guilty as they are not qualified to undertake "not guilty" cases and they will not be paid if defendants don't plead guilty, hardly a source of unbiased advice. It is suggested that guilty defendants pay their court costs out of future earnings including the seizure of their cars. There is nothing wrong with that, after all, in China the relations of those executed by firing squad are invoiced for the bullets, but it may prove unworkable in many cases. A residency test is also proposed to see that legal aid does not go to the recently-arrived immigrants. That may seem harsh but for those of a certain sensibility it is an uncomfortable, though little aired, fact that the growth in the legal aid bill owes much to "asylum" seekers. According to Migration Watch, between 1997 and 2010 there were 610,000 applications for asylum in the UK. In addition to the principal asylum applicants a further 24% entered the UK as dependants of claimants. The Home Office refused 72% of applicants but they all have a right of appeal. The legal aid bill for asylum and immigration cases between 2003 and 2010 totalled £824 million. In 2009/2010 alone it was £90 million and that does not include the cost of manning the immigration courts. There can be no doubt that the issue of so-called asylum seekers is a key driver in the rising cost of the legal aid bill. One alternative suggestion, therefore, which would require a change in the law, would be to abolish the right of such claimants to any appeal after they have received a fair immigration hearing. Another suggestion that would at least help preserve the quality of advice is to allow all existing lawyers who specialise exclusively on criminal legal aid cases to keep their certificates to practice, irrespective of any administrative efficiencies that my be imposed.

To return to the issue of lawyer choice, this is crucial because the quality of advice is paramount in achieving a fair trial. There are also some areas of criminal law, like football offences, that require specialist knowledge, which contracted, mega law firms would almost certainly not have. Time spent between lawyer and client is also important for the quality of justice. Under the Government's proposals, rushed solicitors with many cases to deal with on any one day would be unable to provide the necessary time to give proper advice.

The Government is reportedly looking to save £220 million from its second round of cuts to the legal aid bill, this time on criminal cases, but should they be considering any cuts at all if it means that justice is trammelled?It would be disastrous if justice became a two-tier system where the rich only could afford quality representation while those of modest means must represent themselves, hire a lawyer privately, fall on the mercy of charities or accept the lawyers forced  on them. Even those who know that they are innocent may choose to plead guilty because even an innocent verdict would leave the defendants seriously out of pocket as the court costs awarded to them would be based on a table of legal aid costs while the defendant's privately-engaged solicitors would charge much more. This is an example of where the threat to freedom to lawful protest is insidious if not sinister. And so the innocent would go forth branded guilty and all for the want of adequate, meaningful legal aid for the common man. Never, in the annals of British jurisprudence, would justice be so ignobly served on so vast a scale. The Government should look again if it does not want to see a costly rise in the prison population and a descent into lawlessness, not to mention the incalculable damage to investors abroad who prize Britain's legal system that gives them so much confidence to invest in the country.
For those who feel passionately in meaningful justice for all, their views can be exercised simply by signing the online petition: