The following is my response to the government's request for responses to their consultation document on 'Transforming Legal Aid'. I disagree with their proposals for various reasons. In fact, I disagree with the government's austerity programme in its entirety. It is a universal principle that justice should not be for sale and I am worried that the government's proposals move us closer to a situation in which only the rich receive proper, unbiased, professional legal representation. The consultation documents can be found here: https://consult.justice.gov.uk/digital-communications/transforming-legal-aid
is not something that is bought and sold. If it exists it 'delivers value for money' because it is inherently more valuable than money.
It does not, therefore, need credibility with the law abiding
taxpayer who feels its benefits only indirectly. Of course it should
endeavour not to waste money, but the process should be one of
looking for waste and making reforms, rather than arbitrarily
deciding that less money must be spent and insisting on making cuts
until the target reduction is met.
than resolving the underlying socio-economic reasons for the
existence of the justice system I do not have any particular
suggestions as to how to make justice cheaper, nor do I have much to
say about whether it is better to make cuts to the justice budget
rather than say, health, or education. I simply believe that these
areas are so important that we must find a way to pay what it takes.
If that means higher taxes so that the rich go without their yachts
and the middle class without their skiing holidays then so be it. But
this is not a response to the government's economic policy, it is a
response to their justice proposals, which are in my view wholly
many of the criticisms I raise below may be answered by saying that
similar defects are tolerated elsewhere in the justice system. This
is irrelevant. The fact a defect exists in one place is not a reason
to introduce it elsewhere.
due to concerns raised at 1, 2, and 3 below
due to 1, 2, and 3 below
due to not agreeing with proposal
due to 1, 2, 3 and 4, below
due to 1, 2, 3 and 5, below
due to 1, 2, 3 and 5, below
am not qualified to comment on specific proposals regarding
remuneration and fees, which are the subject of the remaing questions, except in so far as to note that the greater
the disparities between what is available on legal and and what is
available privately, the greater the disparities in the justice
available to rich and poor – due to 1, below.
Implications of the Continued Availability of Private Advice
read the consultation, a theme emerges that by reducing access to
legal aid, people will be encouraged to seek earlier or other means
of resolving cases. For example, by forcing prisoners to use the Internal Prison Requests and Complaints System. No-where in this
consultation is it suggested that individuals who do have the means
to pay for private representation should be restricted from doing so
except where the case merits it.
permission suggests that the government does not believe that the
defendants receiving advice and representation at the level available
privately is unjust. Since the act of paying for legal assistance has
no effect on whether that assistance is in the cause of justice, it
is unclear why the government feels it is right to restrict access to
those who can afford it.
proposals' consistent recommendations of blanket reductions or
complete removal of legal aid will surely effect those cases that do
require professional assistance as much as those that do not. People
do not magically become rich simply because their problem requires
money to solve.
The Suitability of Alternative Avenues of Pursuit
proposal makes much of the alternative means of approaching and
resolving disputes. Whilst it may be true that disputes that would be
suited to ADR or informal procedures do not always make use of them,
the proposal does not adequately explain what should happen when they
are not appropriate. For example, a prisoner who finds that their
complaint has not been properly dealt with by the internal prison
requests and complaint system, pursues it through the Ombudsman,
Monitoring Board and Parliamentary Commissioner and has their
complaints upheld, still may find that no action is taken and yet
have no way of resolving their case.
might be argued that these systems may or will be improved and that
will address my concerns. If this is the case then there is no need
to reduce access to legal aid since the improvements in the existing
systems will reduce its uptake anyway.
The Difficulties and Unfairness of Paying Privately for Justice
I have some sympathy for the idea that people whose household
disposable income is more than £37,000 should have to pay for their
own defence if found guilty, legal process must not become a part of
the punishment of defendants. It is highly questionable whether the
wealthy should be subject to an additional sanction for their crimes,
whether or not it is characterised as such. This question does not
appear to be addressed in the consultation paper. There are, however,
two further points to consider.
when the payments would be made. A scheme in which they repay the
cost of their defence if convicted is unlikely to be workable since a
trial on indictment is highly likely to result in imprisonment on
conviction and a subsequent truncating of their income. If instead
they are to be made during the trial, this could have a dramatic
impact on a potentially innocent defendant's lifestyle, potentially
over a lengthy period. It may well be that a person who has £37,000
per year to spare lives a lifestyle that is considerably more
comfortable than the average. However, I am not convinced that it is
just to deprive them of it for any duration of time, particularly
given the stresses they will already be under.
when a defendant is acquitted, they will only be reimbursed at the
legal aid rates. This raises the possibility of people losing their
money through no fault of their own. If the government were to ensure
that there is always competent representation available at the legal
aid rates, then this might be acceptable, subject to a resolution of
the first issue raised above. However, it seems doubtful, given the
hurry with which a defendant must secure representation and the
inherent difficulties in doing so if held on remand, that such
assurances could be given.
the requirement that defendants satisfy a means test will necessarily
require an intrusion into affairs that would ordinarily be private,
and require them to produce documentation that may not always be
readily available. Although poor record keeping should not be
encouraged, it is not in itself criminal and should certainly not
affect an individual's access to justice.
The Irrelevance of Residency to Justice
fact that a person is not resident in the UK does not mean they are
not entitled to justice; if a civil case arises, justice requires
that it be dealt with. The fact that they may not have made a
contribution to the funds that pay for legal aid is not relevant
unless there is an alternative means for the person to achieve
justice. The proposal does not suggest what a person who requires
justice in the UK should do if they cannot afford to bring the case
Conflicts of Interest in Delegating Judicial Responsibility
intention of the proposals regarding judicial review appears to be to
discourage lawyers from applying for permission to proceed with
judicial review cases where they believe the permission will not be
granted. It accomplishes this by transferring the risk of proceeding
from the state to the lawyer. This effectively requires the lawyer to
make a definitive judicial determination as to the merits of the
case. This causes two problems:
it creates a clear conflict of interest: It is in a client's
interests to continue with a case that has, for example, a 30% chance
of success, but it is certainly not in the lawyer's interests. Of
course, a lawyer should never place their own interests above their
client's and so the effect of this proposal would either be to
encourage lawyers to behave unethically, or alternatively to penalise
them for acting in an ethical way.
it is questionable whether it is the job of a lawyer, by which I mean
a barrister or solicitor, to make a final determination as to whether
a case should proceed. They should of course advise a client as to
the prospects of success, but it should not be up to them whether or
not the case proceeds. There are countless examples of cases that
appeared unlikely at first proceeding successfully. It would be
particularly concerning if cases did not proceed because they turned
on a complex or controversial point of law. This could potentially
deprive the legal system of judicial insight and the development of
new case law.
issue currently arises in all civil legal aid cases where the
prospect of success is assessed beforehand. If implemented, the
proposal to remove the Borderline category would worsen an existing
is anticipated that a rebuttal to this response would suggest that
the author appears to believe that the state has infinite resources
with which to deliver perfect justice. I do not. I acknowledge that
true justice is extremely expensive and the combined resources of the
world are insufficient to deliver it in each and every case.
seek to highlight the fact that if we do need to cut the legal aid
budget, it will necessarily lead to the injustices outlined above,
and in particular mean that those who can afford private
representation will be considerably more likely to receive justice
than those who do not. This should be openly acknowledged by the
government and ultimately consideration should be given to more
wholesale reforms of the justice system.