Westminster Watch - August 2011

A long time coming. The Government has finally published its response to its legal aid consultation -  and its Legal Aid Bill. Charles Hale and Toby Craig examine them.

A long time coming and more stop and start than Wimbledon in the rain, eventually, on 21 June, the Government published its response to its legal aid consultation.

Simultaneously, it published the Legal Aid, Sentencing and Punishment of Offenders Bill. True to form, the Bill was accidentally published too early in the day, before the Lord Chancellor had addressed the Commons, and had to be withdrawn (by which stage copies of the Bill had already been widely circulated).

It has already been widely reported how damaging the proposed reforms (whether requiring primary legislation or statutory instruments) are going to be for access to justice. Thousands of consultation responses, including many from those who really understand the justice system, were read, but discounted. Fingers in ears, the Government pushed ahead, determined to achieve its £350m cuts.

The Bar Council has been quick to respond. Press releases have been issued, meetings with journalists, shadow ministers, MPs and wider interest groups quickly arranged. Peter Lodder QC gave evidence before the Public Bill Committee on the first day of Committee Stage on 12 July. The Bar is doing all it can to press its case, but, of course, that does not always mean that the Government will respond. The MoJ maintains a stubborn desire to push through its reforms with apparent disregard for their consequences. It is children, vulnerable people and hardworking families who will suffer.

The insurance policy of legal aid, which we all pay for through our taxes, is, in private family law cases, debt, housing and clinical negligence, to name just some, being cruelly withdrawn. Those of us who do that work will know the consequence will be greater costs pushed down the line with broken families and disenfranchised poor. The Government has not yet quantified the burn of injustice that so many will feel.

It is still far from certain that £350m will actually be found. The more that people face the risk of having to go to court on their own, the greater the danger that court costs will escalate. Being on ‘day four of two’ when you find yourself up against a litigant in person is not unusual. The judges of course are in dread. Even with a supportive and sympathetic system in place, LiPs will rarely be able to advance their cause as a specialist advocate can. With the forthcoming changes, they will have no option, assuming they can find the courage to pursue their legal rights.

The media vs the independent advocate

Contemporary events provide a fascinating back-drop to the legal aid debate, particularly on the criminal side, looking more broadly at what the Bar actually does and how the justice system works in practice. They are crucial ingredients in securing public confidence and support. Through the Levi Bellfield case, the report of Victims’ Commissioner, Louise Casey and the sudden, shocking resurgence of the phone-hacking scandal, leading to the demise of the News of the World, it is crystal clear how poor public understanding of the justice system can be.

In the Levi Bellfield case, thanks in part to appallingly inaccurate media coverage, it quickly became received wisdom that the cross-examination of Milly Dowler’s family had been excessive, unfair and bullying. Certainly, some of the questions put to Milly’s family were very hard for them to deal with in open court and everyone’s sympathy will be with them. However, in line with the prosecution’s disclosure, whilst difficult for all involved, the judge decided the questions were fairand proportionate. The vicious media attacks on Bellfield’s barrister were anything but. They were cheap and ill educated and did nothing to increase understanding.

It should not be news to the public or the media that we have an adversarial process, with the presumption of innocence at its heart but you wonder.  The prosecution puts the evidence before the court and the defence tests it, robustly and fearlessly.  Instructed by the judge , it is for the jury to determine guilt or aquittal.  That is exactly what happened in the Bellfield case, as basic as that may seem to us.

Charles Hale is a barrister at 4 Paper Buildings and a member of the Bar Council.

Toby Craig is the Head of Communications at the Bar Council.