There is a good deal of research, not just from the UK but from Australia, Canada and several states of the USA, which points to the economic benefit to government of legal aid expenditure, especially in relation to early advice. A pound spent on legal aid will save several pounds which will otherwise have to be expended on health, or education, or housing, or social security. This is because legal advice will often prevent a costly downward spiral in the fortunes of a citizen, and all those who may be caught in the wake of the fall. The economists are unanimous: for the Treasury, a stitch in time saves nine.
For many years now the Ministry of Justice has cut spending on legal aid as a result of demands made by the Treasury. Some Lord Chancellors have fought their budgetary corner harder than others. But so far as I am aware, government departments responsible for health, education, housing, and social security do not petition the Treasury to spend more on legal aid so that the demands on their own budget can be reduced. The omission is a puzzle because the concept is not difficult to grasp. Someone who has no advice on how to combat a rogue landlord and so keep a roof over their head, is liable when homeless to develop medical needs. The children of parents whose debts have spiralled out of control because money lenders have not been kept in check, will themselves suffer the disruptive emotional and physical consequences and so in turn are more liable to cost the state when things start to go wrong in their own lives. Early advice that might help litigants resolve their differences would make savings for the courts; or provide a remedy for a vulnerable party thus holding in check dependency on welfare. There are, of course, hundreds of other ways in which good legal advice and representation acts to prevent a citizen becoming an expensive burden on the state.
An intelligent overview of government would see the savings across government, and would make the investment. No instant hit, but a genuine investment because it would take time for the dividends to materialise. Perhaps the life of a government is too short for such an overview to gain traction. Perhaps the modern generation of politicians, believing there are no votes in legal aid, have simply lacked the statesmanship of their forebears, to depoliticise the subject for the common good. It requires some statesmanship, because following years of spin by politicians of disappointing stature, in the public mind legal aid has become synonymous with greedy lawyers. So it would be better if the case for legal aid was made by others. But who is there to make the case?
I have just come back from an international conference where legal aid schemes around the world were compared. A worthy initiative to spread the message worldwide is under way. Access to justice for all is one of the UN’s 17 sustainable development goals. It was difficult not to notice that the shrinkage of legal aid expenditure in England and Wales is in stark contrast to expansion of such expenditure elsewhere. The Japanese delegate was so struck by the contrast with his own country that he had created a slide devoted to illustrating reduction in expenditure in England and Wales in recent years. The international audience was astonished. They asked me what had gone wrong. It was difficult to answer, and it felt a little shaming. Not least because at this same conference, in the context of Brexit and next to our Union flag, the UK government brandishes the slogan ‘Legal Services are GREAT’. Frankly, this is difficult to stomach. Great for whom?
Undoubtedly in the international sphere, we shine. Legal services generate £26bn for the Exchequer. In the meantime, charities and pro bono activity continue to try to meet some of the deficit at home. But they cannot begin to provide an adequate alternative. The post-war generation understood that charity was not the answer to social deprivation. The moral case for legal aid to help to provide access to justice is presumably unnecessary to mount. The economic case is made out because a stitch in time saves nine.
We continue to produce world-class lawyers committed to the vocation of the law. Whatever the settlement following our exit from the European Union, does anyone doubt the capacity of lawyers of England and Wales to adapt and to thrive? But if we want our legal services to be truly great, whether in upper or lower case, we perhaps ought to invest in serving those of our citizens in greatest need of legal advice and representation. This is hardly a radical cry. I am happy to debate it with anyone, but very few seem to want to take the argument on. The pitiful fact is that in terms of national expenditure the sums involved are so small, yet the consequences so profound.
"The campaign should focus on rubbing out the shame in the disparity that currently exists, and is worsening, between those who can afford advice and representation and those who cannot"
I do not think we should give up. I sense there may be a change in the national mood. I invite the Bar to voice its support for a national campaign. Let us not campaign on behalf of lawyers. The fact that the legal profession suffers collateral damage is undeniable, but those arguments cut no mustard in the court of public opinion. Instead the campaign should focus on rubbing out the shame in the disparity that currently exists, and is worsening, between those who can afford advice and representation and those who cannot.
If you are not planning to come to our Annual Bar and Young Bar Conference on Saturday 4 November, please think again. Do get yourselves to London for the day if you can; if you live there, even better. Book here: bit.ly/2x3WZn4.
The Bar stands for the public interest and in this debate we all know where that lies. We need to articulate it. I would like to do so when we are together. Let’s make legal aid great again.
Andrew Langdon QC, Chair of the Bar