Undeterred by such a short timeframe and galvanised by virtually unprecedented agreement in opposition to the proposals across the profession, individuals, working groups and organisations set about drafting their detailed responses. Naturally, that included the Bar Council, the Criminal Bar Association, the Family Law Bar Association, the Circuits, the Law Society and many individual sets of chambers and law firms. But they weren’t the only organisations criticising the Government’s proposals. Strong responses were also being drafted by groups including the Council of Circuit Judges, Shelter, Citizens Advice and the Bingham Centre.
There have been protests, demonstrations, petitions and polls and a broad campaign to explain these proposals to the public. And whilst all of that was going on, there has been an awful lot of drafting.
The outcome of all this feverish work is an impressive 13,000 submissions in response to the Consultation Paper. Of those which have been openly published, none appeared to be speaking in support of the proposals, but there must be a needle buried somewhere in that haystack. The team which has been tasked with sifting through the responses has a busy summer ahead (albeit they may have longer than eight weeks); one hopes they give each submission the attention it deserves. A huge amount of work has gone in to them. It is, however, concerning that when the Chairman of the Bar handed over a petition to the Ministry of Justice, boasting nearly 50,000 signatures, which the Bar Council started with campaigning group, 38 Degrees, she was told that it would count as just one response.
The proposals have been well rehearsed. The Lord Chancellor tells us we have one of the most costly legal aid systems anywhere in the world, which has lost credibility with the public in recent years and that we must make savings. The new proposals will create, he says, a more affordable system, where competition is based on price. Those who can pay, must, and weak judicial review cases will not be funded. All this will apparently boost public confidence in the system and all will be well again.
But – and there’s always a but – there are a lot of assumptions which have been made and not all of them appear to have much, if any, evidence to support them. Of particular interest is the broad statement about public confidence in the system. The Bar Council commissioned ComRes to conduct a poll on public perceptions of legal aid. Over two thirds said it was a worthwhile investment in our basic freedoms.
The respondents to the consultation have painted a rather different, bleaker, picture of the Government’s proposals. They say that they will stop people being able to choose a lawyer, and thereby remove all competition based upon quality from the market, leave vulnerable people without any legal representation, put over a thousand solicitors’ firms out of business, see the harshest cuts anywhere in public services, and undermine diversity across the legal profession. Sweeping changes to civil legal aid would water down the right to representation for judicial reviews and introduce a residence test.
It seems a difficult gap to bridge, and there is very little, if anything, by way of consensus between the Government and the overwhelming majority of opponents. The media messages have been strong and clear, but the battle for public opinion is an open one, with blows being traded across news platforms. The opponents have made some considerable traction with strong public interest arguments, particularly looking at the impact on the justice system as a whole and the UK’s reputation for upholding the Rule of Law. The Government, both regrettably and infuriatingly, has too often turned to tried, tested and out-of-date top-earner lists, a handful of exceptional cases and attacked what it portrays as the legal profession’s greed and self-interest. All this has created a cycle which, as yet, is unbroken.
The Bar Council, in a wholesale opposition to price competitive tendering, calling it “fundamentally flawed” and saying that the removal of client choice “ignores fundamental human rights”, made plain the objections of the Bar, which included damning academic, statistical and economic data, which queried whether the ‘savings’ would in fact be delivered as proposed. It went on to state that it had “no plans to develop a quality system to facilitate price competitive tendering (PCT) for criminal legal aid” saying it would “not lend [its] support to a scheme that will wreck the criminal justice system.”
The Law Society described the planned changes as “unworkable”. Barristers and solicitors were united in saying they would work with the Government to find savings, but that the blunt instruments proposed, with wholly inadequate consultation, would not produce a system which worked in the public interest.
But there are some differences about this campaign, both in the volume of opposition and in the groups which have been prepared to speak out.
A particularly notable response came from the Council of Circuit Judges, which noted its “dismay” at the short period for consultation, questioned the evidence base for some of the assertions made in the Paper and stated its strong opposition to removal of client choice. Strong stuff. As Joshua Rozenberg surmised, it is a “devastating attack by circuit judges on Grayling’s legal aid plans.” He went on to ask “Will he also accuse them of lying, self-interest?”
The judges were not alone. In a letter to the Attorney General on the public law proposals, 145 Treasury Counsel wrote “We consider that the proposals in the Consultation Paper will undermine the accountability of public bodies to the detriment of society as a whole and the vulnerable in particular.”
For those who might think that this is just another example of the legal community protecting its own, one only need to look to Shelter, the housing charity, which works with some of society’s most vulnerable. In its own response, opposing changes to Judicial Review, it said “these proposals will take away a major part of the safety net that stands between families and the street [...] they are likely to leave more and more people unrepresented and have unforeseen knock-on consequences both for the individuals affected and for Government and society through increased poverty and homelessness and increased expenditure elsewhere in the system.” Adding further weight to that view, Citizens Advice said: “Change on the scale proposed could potentially wipe out remaining social welfare law provision and end family legal aid altogether”, adding “Denial of client choice and incentives to end cases early (e.g. by guilty pleas) may adversely affect the quality, outcomes and ethics of criminal defence work and increase the likelihood of miscarriages of justice.”
The Bingham Centre’s appraisal of how the proposals stack up in terms of the Rule of Law is equally stark: “We find the justifications offered in support of [the legal aid] proposals to be wanting in terms of the Rule of Law.”
Liberty pulled no punches in a press release issued the day that responses were due, echoing the views of many hard-working publicly-funded lawyers: “These reforms aren’t about cutting the champagne budget of “fat-cat lawyers”, as some would have us believe; legal aid practitioners are often poorly paid. Rather, they are a deliberate assault on a fundamental principle – justice. Those who will suffer most are the disabled, children, refugees, those with crippling debts, crime victims and vulnerable individuals caught up in our criminal justice system. Meanwhile, the Government protects itself from effective challenge by restricting legal aid for judicial review. We will all be worse off as a result.”
The rhetoric has been strong. Whilst some of the issues are necessarily complex, they have effectively been boiled down to quite simple arguments. There is a level of public animosity towards lawyers, which the Government often seeks to perpetuate, but the cases have been made articulately and boldly. As the Government considers its full response over the summer, it will be certain of one thing; it has a fight on its hands.
Toby Craig is the head of communications at the Bar Council