Investigating Legal Aid Reform

James Sharpe urges caution over Legal Aid Reform. 

The legal aid reforms are very confusing. The subject can also be rather boring. Unless (or, for a certain sort of person, until) you’re involved in the criminal justice system, you’re unlikely to worry about legal aid. The Government’s attempts to claw back £220 million from the £2.1 billion legal aid budget should,  however, worry anyone who cares about our legal system and access to justice.

The British criminal justice system is, quite rightly, highly-regarded around the world. It has the benefit of being long-established andSign-to-magistrates-court-006 entrenched. It relies on educated and skilled practitioners doing the best for their clients in an adversarial environment where the case for innocence and the case for guilt are expressed eloquently and with care before a jury. And the legal practitioners who represent the defendant are vital to this system.

A lot of the publicity surrounding the legal aid reforms have focused on the potential cuts criminal lawyers will face to their salaries. Although it is right that many lawyers are paid exorbitant amounts, it must be remembered that lawyers involved in criminal law have seen their salaries remain stagnant or even fall. Criminal barristers in particular have seen their wages fall by sometimes as much as 40 per cent as a result of changes introduced under Tony Blair. The more worrying aspect of the current Government’s changes to legal aid, however, is in the new structures it proposes to introduce, which will undermine the competitive elements in our legal system that make it so effective.

As in many parts of public life, there is and always will be a certain amount of trust. We trust jurors to have a certain level of rationality (even if it has been knocked by the Vicky Pryce trial). We trust judges to ensure that a trial is conducted fairly and, if they are required to pass sentence, that they will impose a punishment proportionate to the crime and all the attendant circumstances. We trust that lawyers will conduct themselves professionally and perform their duties to the court and to their clients competently.

But, although our system relies on this trust, it does not mean we should be blind to the possibility of its corruption. And we should be especially wary of new sources of influence and power within our legal system which do not have the power of history or precedent to enforce the sense of duty from which trust naturally arises. Criminal barristers are educated collegiately in Inns of Court, and when they practice they are known and judged by their peers. It is what makes such an effective self-regulating system. It is this that ensures that bad advocates (whether through lack of skill or lack of commitment) are quickly identified and weaned out. This is a finely balanced system that can quickly be undermined when new elements are added.

One new element was added in 1986 – the Crown Prosecution Service. It is ironic that, given the CPS was formed under Margaret Thatcher, it should have effectively nationalised criminal prosecutions. Barristers are usually hired by solicitors, who are in turn hired by their clients. The chain works because quality of service is what matters: bad barristers don’t get hired by solicitors; bad solicitors don’t get any clients. But rather than getting paid per brief and having to fight other barristers for that brief – competition at its finest – the CPS can simply give it to someone already on the payroll. There is simply not the same quality guarantee, and that element of trust is fatally undermined.

Mock trial

The Government’s legal aid reforms takes this even further. At the moment, people charged with a crime can nominate a solicitor to represent them. Under the new plans, the Government will simply choose one. In other words, the Government is seeking to remove competition from the choice of legal-aid-funded defence solicitors in precisely the same way it has removed it from the criminal prosecution. The Government will decide which law firms to pick based on Price Competitive Tendering. While it is claimed to allow the Government to get the best value for money relative to a lawyer’s knowledge and experience for a given criminal case, the danger is always that the former will be forefront in the mind; and this is seemingly confirmed when companies like Tesco say they are interested in competing with established law firms for these contracts.

I am sure that Tesco could be an effective provider of legal services in the long term, but the stress is on the long term. It takes time to build a practice and establish a reputation. It is reckless to think a company can simply knock one together to compete for Government contracts without proof of quality or experience.

There are many aspects of legal aid that can and should be reformed. It makes sense, for example, to make convicted criminals liable for some or all of their legal aid costs. The danger with the Government’s proposals, however, is they tamper with the mechanisms that make our criminal justice system effective. There is a big difference between saving money and gutting a system that works.

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