Unpleasant truths

We are not winning the battle on legal aid. It is not our fault. Listen to the military with their mantra that cuts are ‘hollowing out’ the armed services. They are getting nowhere. The country is in limbo. Massive cuts are being imposed over whole fields of public expenditure. The Guardian prophesies doom but … the sun still shines; the long-term consequences are not apparent. Ministers think that they are going to get away with it. Enough voters do not realise what is being lost.  

Understandably, the most vocal concerns of the two branches of the legal profession have been remuneration and employment. Both the bar and the Law Society have achieved minor victories. But we have to be clear-eyed: fiddling at the edges and a bit of postponement do not add up to much. The public fight must continue, if only to deter worse.

But privately we have to realise, in Springsteen’s haunting words, ‘these jobs are going, boys, and they ain’t coming back’. Legal aid spending is being slashed. And angry denunciation by onetime legal aid practitioner Sadiq Khan has conspicuously been linked to acceptance of Labour’s ‘zero-based spending review’. So that is a resounding ‘no’ to any hope from an incoming Miliband government.

There are problems in focusing on lawyers at the campaigning edge. It was unlucky that the Mail identified a barrister attending a cuts demonstration with a £1,100 Mulberry handbag. But that was just an illustration of a wider problem. If we want to make any public impact then it is legal aid’s lost clients who need to take centre stage. These cuts have been quite precisely targeted at the success of the Law Society’s 1940s scheme in assisting women whose relationships were breaking up and the 1970s expansion into the problems of the poor with various instruments of the state. Both have been wiped out.

We need to accept the logic of our own rhetoric in the arguments we put to government. The legal aid scheme as it has developed since the second world war is bust. It is not capable of delivering an acceptable breadth of service to the public: the money is not enough. As elsewhere, the cuts have been so deep that they require a fundamental reconceptualisation. Here are two suggestions. You may not agree with either but the challenge is to suggest alternatives. Staggering on as at present is not an option.

First, we have to consider justice as a comprehensive package. That includes the courts. Could we make savings that would allow us to divert resources to legal aid or at least, as in California, to a network of self-help representation centres? In 1873, the Liberal government intended to abolish the Court of Appeal. It was reprieved because the incoming Tories wanted to protect the House of Lords. Well, in the new age of austerity, can we still afford two tiers of appeal? Any case of real seriousness goes to the Supreme Court anyway; the intermediate appeal is academic.

We could save over 30 appeal judge salaries at around £200,000 each. There would be some loss of court fees but considerable savings nevertheless. You might think that such a proposal entails an unacceptable diminution of justice. But, that is not a current policy concern of government – all that matters is cost. There are other elements of the judicial budget. Did the judicialisation of tribunals go too far? Should we explore cheaper forms of dispute resolution?

Second, we have to consider the structure of legal aid. It may be time to follow other countries in reconceptualising our legal aid delivery. The Ministry of Justice advertises posts in the existing, very limited Public Defence Service with salaries between £46,036 and £125,000. Most legal aid practitioners would settle for that. There is plenty of evidence in other jurisdictions that salaried services can be made to work – both for lawyers and clients – particularly if their independence from government is secured. Empirically, they can deliver ‘more bang for each buck’.

Would it not be better for clients and lawyers that we get a smaller cadre of reasonably paid lawyers, than the money being stretched far too thin over too many, with unrealistic expectations of hitting a financial jackpot?

Spokespeople for the army are calling the government’s cuts ‘one helluva risk’. They are right. It is a fair prediction that the UK will be off the UN Security Council in a decade, as our second-rate international ranking becomes apparent. Voters will then wake up to just how these cuts are hollowing out our international role. At home, the cuts to legal aid are no less damaging: they hollow out the state’s commitment to fundamental fairness for the poor as well as the rich. If we all agree that the current situation is unsustainable, how do we intend to go forward?

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice