In explaining his U turn on the policy of increasing the discount for guilty pleas, the Prime Minister said: ‘Why would you ever have green or white papers if you never listen to what people said in response to them?’ There were over 5,000 responses to the legal aid green paper. Most made clear that many proposals were at best misconceived and in some cases positively harmful. The Government did not listen.
They declare that our legal aid provision is ‘the most generous in the world’. It is not. Council of Europe research, and the Legal Action Group, have found it to be “average”. We will be well below average after these cuts have ransacked our system. Desperate to find a common law comparator, the Government went to New Zealand. But that country does not have the social problems that we have. This is not comparing like with like.
Equally it is a nonsense that defence counsel decides what a defendant will do. It is proposed to pay a paltry £203 where Crown Court trial has been elected but a plea entered at the last moment. Many defendants wait to see if witnesses attend or will not face up to the reality of their situations until the last minute. For many barristers the reality of these situations is all too clear. They will have had a conference, a PCMH, perhaps two, and the case may have been set down for a three day trial. A commitment of five days for £200: £40 per day before any expenses.
We suggested alternatives to relieve the burden on the public purse: force wealthy defendants whose assets have been restrained to pay for their own defence instead of receiving legal aid, ignored; instead a further disincentive, acquitted defendants who have paid themselves will not get their costs in the Crown Court. Big fraud cases: less than 5% of trials but estimated by the Government to take up to 50% of the budget; usually officers of a company, we suggested they be required to take out compulsory insurance and a huge amount of money could be saved to be applied elsewhere. Again ignored.
Things are no better in Family. Why is the Government determined to forge ahead with radical changes to legal aid while the important work of the Family Justice Review under David Norgrove is still ongoing? It does not take account of interim recommendations which themselves are likely to achieve economies. We remain concerned about the risk to significant numbers of children caught up in disputes before the courts, whose parents will not be able to receive legal advice. There are significant implications for access to justice for the most vulnerable members of our society.
Worse still, it is questionable that these proposals will save money. Stressed litigants in person, unfamiliar with the surroundings and not used to marshalling the arguments, will prolong hearings and overall costs will increase. These concerns are shared by the Judges’ Council of England and Wales and research referred to in the interim report of the Family Justice Review confirms the advantages of professional advice and representation. When lawyers are involved, many cases are resolved without recourse to courts or the need for a contested hearing.
In the face of warnings the Government has indicated that it will bring in significant changes to the CFA regime but without the safety net of legal aid. So injured claimants with valid claims will be unable to bring them. There will be widespread injustice for a large number of Claimants with valid cases but without private means who are injured through the fault of others. Removing the recoverability of success fees from the wrongdoer, and setting an unrealistically low cap on any success fee chargeable from the injured person, will mean that – in particular those with serious injuries and complex cases – will be unable to secure representation and thus to bring their cases at all.
If they do their damages will be reduced. Our system carefully calibrates injury damages to reflect actual financial loss and need. It is particularly important that valid injury claims should be compensated in full. The Government proposes that Claimants who have been able to find representation will inevitably have their damages significantly reduced in order to fund the success fee.
Stephen Cobb QC (FLBA) assisted by Max Hill QC (CBA) and Chris Hancock QC (COMBAR) are leading our own Bill team. They will prepare and collate the material for our attack on this measure. We have already mounted a campaign through television, radio and print media. I have begun a programme of speaking to parliamentarians and will be giving evidence on the first day of the Bill committee. Our campaign will continue as the Bill passes into the House of Lords in the autumn.
I urge you to contact your own MPs or other parliamentary contacts. Speak to your local press. Make clear that this is not just about fees but about the denial of access to justice for people, including some of the most vulnerable as well as individuals challenging the power of the state.
But it concerns us all...
The impact of these changes is not confined to publicly funded practitioners. The reputation of our legal system for fairness as well as efficiency and effectiveness are among the reasons why so many international cases come before for resolution before our courts or through arbitration, which increases the UK’s overseas earnings. If cuts in legal aid undermine our reputation for high quality and efficient administration of justice – commercial practitioners and others will suffer as well. Taking a stand on this Bill is not only in the public interest, it is in the national interest.
Peter Lodder QC, Bar Chairman