Now is the time for a total review

Defending the profession; resisting cuts that will destroy access to justice for all; understanding the value of our justice system in a civilised society; and amidst all the proposed changes, the need to establish a Royal Commission to carry out a full, independent review

Contributor
Maura McGowan QC, Chairman of the Bar

Barristers are such an easy target. Trite sneers are instantly available to the disappointed litigant, failed pupil or populist politician. We are “fat cats” sitting in “Georgian terraces” bleating about the “racket” coming to an end. The natural response of the practitioner to these comments is anger and frustration.

Consider for a moment the appalling suggestion that our concerns are misplaced because they include protecting the legitimate interests of “repeat offenders”. Is a conviction to be followed by a presumption of guilt on all subsequent occasions? Should a previous conviction eliminate the right to representation by professionals in whom such a defendant feels confidence?

In March we were told the legal aid consultation was to be published imminently and that price competitive tendering (PCT) was inevitable; only the details were left for discussion. In April it was published and we were not to be subjected to PCT after all. That was a moment of absolute relief for the system and the profession, but it was only a brief moment. The full realisation of the effect of the PCT scheme for solicitors on the public interest soon became all too apparent and the savage level of proposed cuts was truly shocking.

Of course we want to receive reasonable payment for what we do and should not apologise for saying so. Viewed honestly and objectively, the proper conduct of our professional duties requires considerable ability that comprises a wide range of different skills. It rejects the slapdash and incompetent. It requires the application of immense amounts of time often at considerable cost to family and social life.

However, we have recognised that our concerns and interests form only a small part of the current debate.

Had we been self-interested, we could have walked away from the PCT and Judicial Review arguments and left them to others whilst concentrating only on our fees. We didn’t. We have engaged wholeheartedly and I believe entirely reasonably in the entire process. We have prepared detailed, reasoned and well-considered responses. They include radical measures to promote efficiency and save costs. This is precisely the approach now urged on the Lord Chancellor by his predecessor Lord Mackay of Clashfern.

Our core arguments centre on the value of our justice system to the civilized functioning of society. They centre on the need to provide an adequately funded, skilled service to all those involved; witnesses and complainants, as well as the accused.

The complaint that our legal aid system is the most expensive is an over-simplification. Certainly, our system has long been recognised as the best in the world. As a result we attract substantial amounts of international litigation. For that reason, the legal services sector brings in about 1.6% of GDP. The profit and loss account overall is entirely in the black.

Commercial lawyers repeatedly emphasise that it is the fairness, integrity and objectivity of our administration of justice which inspires confidence in their international clients and so influences them to have their disputes resolved here.

That savings and efficiencies can be achieved is entirely right. We will continue to work to identify and implement those savings but not at the cost of those standards that genuinely attract the admiration of the world.

The current crisis is the perfect opportunity to review the entire system.  For too long, criticisms have been raised and changes made in a fragmentary fashion that lacks coherence. The current proposals do not have to be implemented to provide cuts in spending, even in the short term. The figures in the paper of £1.14bn are based on 2011/2012 and require savings of £220m, but the LAA budget for 2012/2013 shows that the spend has already fallen to £941m, so £198m has already been saved.

Add to that the projected fall in the volume of cases of 9%, our willingness to make efficiency savings, the proposal to abolish the VHCC (very high cost cases)system and it is clear that there are already substantial reductions in the current spend.

With that achieved, it is the right time to establish a Royal Commission to review the entire system, not just cuts to fees. Amongst other reforms it should consider the classification of offences, the distribution of work between the Magistrates’ and Crown Courts, and the relationship between the two. It could also consider the reform of all sentencing legislation and properly integrate the Lord Chancellor’s desire for rehabilitation within the sentencing regime.

The last commission was more than 20 years ago. Since then, so much has changed, not least in the use of technology.  Further, a comprehensive review would sit well alongside the Government’s ongoing consideration of the reform of the resourcing and administration of the Courts and Tribunals. Most importantly a Royal Commission would act objectively on a fair assessment of evidence.

The time is right.

It is equally an opportune moment to look again at the scope of Judicial Review and not simply its financing. There is inevitably a tension between a government which is being held to account and its willingness to pay for that process. That relationship requires disinterested analysis.

The cuts previously imposed, the effect of LASPO and the Jackson reforms are only just beginning to have an impact on both sides of the profession. Lord Carter recommended a time for consolidation after such major changes: now is that time. Allow those measures to take their course and there will be a more effective and efficient process at the end. Implement the current proposals and the system will be damaged beyond repair.