Fools rush in
The government must give careful consideration to the long-term effects of its proposals before it slashes the MoJ budget, warns the criminal Bar's new chairman, Christopher Kinch QC
If it turns out that the Ministry of Justice has to find cuts of 25 per cent in their budget to satisfy the Treasury in the imminent public spending review, the MoJ would have to find around £2.25bn from its £9bn budget. To a bureaucratic eye there must be a pleasing symmetry in the fact that the legal aid spend is about £2.1bn. What price on some budding Sir Humphrey whispering into a ministerial ear 'Go on Minister, abolish legal aid. You will make Mr Clarke happy and gainadmission to Mr Osborne's Star Chamber.'
Such appeals will be popular in some quarters. After all Dick the Butcher's call in Henry VI part 2: 'First thing we do: let's kill all the lawyers' is many people's favourite line from Shakespeare. Fortunately for the people who need lawyers for advice and representation, legal aid will remain a priority for governments of any persuasion.
However, it is worth recalling how far the axe has already fallen in recent years. Contrary to the impression often given that legal aid spending is soaring, the LSC has admitted that the legal aid budget has in fact been frozen at 2006 levels. At the same time if the budget had increased to keep pace with the rise in demand for legal aid the budget would now stand at £2.7bn. There has been a decline in real terms in the budget of £600m (The Procurement of Legal Aid in England and Wales by the Legal Services Commission, HC 322, February 2010).
This should be hailed as a remarkable increase in productivity by publicly funded lawyers. Instead, the last government in its death throes reached out to grab 13.5 per cent back from the advocates graduated fee system hours before the election was announced.
Pitching in
It is no use bleating. We know we will face cuts although we are apparently to be spared further 'salami slicing'. The legal profession, as a whole, has a responsibility to scrutinise how the forthcoming cuts will affect the justice system in the round. We will need to work together to provide a strong voice for those most at risk from the planned cuts.
A starting point must be to ensure high-quality representation for all those who should be eligible to receive it, but particularly the most vulnerable members of society. The risk of creating 'legal aid deserts' is all too clear if the numbers of legal aid providers are cut heavily rather than pruned.
It will be vital also for the government to understand that if there is a reduction in the quality of service, the cost of doing things badly will be far higher than the savings it is seeking to make. The criminal justice process requires practitioners at every stage who really understand their subject matter.
However, this does not alter the fact that savings have to be found. The legal profession should help the government to find savings and efficiencies in the system. That might include functional issues, such as simplifying the law or repealing oppressive and redundant ones (via the Great Repeal Act), reducing defendants' attendances at preliminary hearings or extending the use of video-conferencing facilities. But it will also include identifying more substantial and controversial issues such as prisons and current sentencing policy.
Time to reflect
The government has committed to launching a sentencing review later this year, and the Lord Chancellor has already said that prison numbers are too high. The Bar has no issue with long sentences for serious offences. However, it is clear that short prisonsentences are often not producing the desired results. Prison numbers have also been inflated by often oppressive indeterminate sentences, an issue which must be resolved if the government is to get a grip on ballooning numbers and costs.
As for legal aid procurement, the recent judicial review proceedings in relation to the family legal aid tendering exercise show at the least that these are important and difficult areas and that great care needs to be taken to ensure that unfairness does not arise in process or outcome.
The government should consider the wisdom of the National Audit Office's recommendation to the LSC in 2009. Commenting on the way in which procurement reforms had been implemented by the LSC, the NAO recommended that in future 'the commission should pilot all major changes, evaluate the pilots and provide a set timetable for their introduction, including fixed dates for post-implementation reviews' (NAO Report into Procurement of Criminal Legal Aid, November 2009).
It would be disappointing if major structural reforms were rushed through without a controlled pilot in the teeth of this warning. Too much haste and too little reflection will put at risk a system of advice and representation that is still rightly admired throughout the world.