A united front
With the government exaggerating the case for legal aid cuts, it is up to all of us to put the record straight, says Peter Lodder QC
An age of austerity usually means one predictable outcome: cuts. Both sides of the legal profession are all too familiar with them. That the government's response to the crisis is yet more cuts will not come as a surprise to any of us. Indeed, publicly funded lawyers of all stripes have witnessed the long-running and often pernicious sequence of cuts which successive governments have imposed. They have had a deep and lasting effect on frontline service providers, which represent members of the public at what are often the most distressing and difficult times in their lives.
Of course there will be cuts with differential effects as between solicitors and the Bar, but there will also be many areas of overlap. When we respond to that situation, it is all too easy for the profession to fall into internecine warfare about who gets what, when and how. Without understating the importance of that issue, there are far more important and fundamental ones at stake. The legal profession has to tackle them together.
The legal services landscape continues to undergo radical transformation. It is not just about how we structure and provide those services, but, most critically, how members of the public can access them and on what terms. In essence, how, via our services, we can help them to access the justice system.
When I speak to barristers around the country, their primary concern has not been their fees, it has been their clients. These clients are ordinary people who depend on our help, guidance, support and expertise. I am sure that view is shared by the vast majority of both parts of the legal profession. There is no shame in a desire to be remunerated properly for the work which we all do, but that does not dilute our deep concern about the effects these changes will have on the society which we serve.
We are in the midst of sweeping changes both to the legal aid system and to the broader funding of civil litigation. Once in place, the effects of a number of the proposed changes will be all but impossible to reverse.
Speaking at the National Pro Bono Centre Question Time Debate recently, I was struck by how much the Bar Council, Law Society and Ilex have in common on these issues. We share a strong and enduring interest in access to justice and fair representation for all. It was the politicians on the panel who were the most isolated.
Collectively, we have identified a number of seemingly unintended adverse consequences that will result from the government's reform plans. As entire areas of law are removed from the scope of public funding, swathes of people will simply not be able to pursue their legal rights unless they choose to go to court alone, unrepresented.
Twisting the truth
One of the roots of the problem is the consistently peddled myth that we have one of the most generous systems of legal aid in the world. Indeed, that is used as some form of justification for the huge £350m which the government is set to withdraw from that budget.
The truth is rather different. The Justice Select Committee, responding recently to the Ministry of Justice's legal aid consultation, made clear that on a comparative basis judicial and court costs need to be included to provide an accurate picture. Referring to Council of Europe data on judicial systems across Europe, the report states that 'when the costs of courts, public prosecution services and legal aid are combined, the budget in England and Wales as a percentage of the GDP per capita is equal to the average'.
Saying that we spend more than any comparative jurisdiction may give credence to the government's political objectives, but it is simply not true. Slashing hundreds of millions of pounds from a system which enjoys no more than 'average' funding creates a disturbingly unequal balance between the citizen and the state. Coming at the same time as the civil litigation funding reforms, many individuals will be left with no viable way of enforcing their rights. Clinical negligence cases are one obvious example.
Alternative opportunities
Of course, we cannot ignore the cause of the problem. We all know the extent of the financial crisis and the government's desire to find savings. However, there must be better ways of finding the required funds than by removing whole areas of legal aid. We have made a number of suggestions as to where the government might be able to save equivalent sums.
One proposal we have made is unfreezing defendants' assets to meet the cost of their legal representation. We have also suggested exploring compulsory legal expenses insurance for all corporate officers. On civil funding, the Bar Council has set up a working group under Guy Mansfield QC to explore the feasibility of a contingency legal aid fund, which might also be able to take some pressure away from the Treasury.
The message is a simple one. There is more which unites us than divides us. We cannot allow the constant stream of misinformation about the effects of the proposed cuts to continue. They will not lead to a better system or a fairer one. It is up to us, collectively, to speak up.