Happy 65th birthday, legal aid

In the week when our legal aid system turns 65, here is a report on the state of health of legal aid in two of our large EU partners. As we grow older, we like to hear that others have problems, too – even though normally I hesitate to write about legal aid in the rest of Europe, in case it gives comfort to our government.

As they know well, and I apologise for repeating it in times of legal aid hardship here, the level of legal aid provision is generally higher in the UK than elsewhere in the EU. But these two stories from Europe have tempted me.

In France, the prime minister Manuel Valls has asked a socialist member of the French parliament (National Assembly), Jean-Yves Le Bouillonnec, to make recommendations about the future financing of legal aid. The prime minister wrote to the MP on 8 July, and wants his report by the end of August. What? – not even eight weeks!

The reason for the hurry is that the government aims to implement his recommendations in time for the 2015 budget. The request was preceded, not surprisingly, by a long series of political actions. There have been previous reports into legal aid funding, and, most pressingly, the day before the prime minister’s letter, there was a mass demonstration of nearly 6,000 lawyers against the current system (come in your robes, said the invitation).

The French prime minister’s letter to the MP states that legal aid is a major government preoccupation; that the current system has come to the end of its usefulness; that no source of future financing should be excluded in his report; and that any future system should be comprehensive, equitable and sustainable.

The problem for lawyers is that some of the previous proposals floated have not been popular: a levy on legal expenses insurance, a tax on notarial deeds, and - particularly opposed - a tax on lawyers’ turnover. Given that lawyers already contribute substantially to legal aid, the Conseil National des Barreaux (CNB, or National Council of Bars) has once again come out firmly against a tax on lawyers’ turnover or profit.

(What next? Hospitals to be financed by doctors? Parliament and the government to be financed by politicians? Maybe everyone should fund their own field of work, and turn work into a hobby.)

The CNB has said that it will participate in the considerations of the Le Bouillonnec report, with the aim of establishing an innovative and durable system. They have had two meetings with the MP so far – and doubtless there will be cancelled holidays in the CNB and parliament in the coming weeks.

Next is Spain. On 24 July, there was a demonstration in Madrid of more than 700 lawyers from the 83 local Spanish bars to protest against a legal aid bill currently under discussion in the Spanish Cortes Generales. Of course, the lawyers were again in their robes (‘togas negras’). There have been serious recent cuts to legal aid in Spain, by more than €43m in four years.

Most of this has come through lower payments to lawyers – with reductions in 2013 of between 5-10%. The president of the Consejo General de la Abogacía Española (CGAE, or General Council of Spanish Bars) has said that the reform of legal aid should not be at the expense of lawyers. (Do you see a familiar theme emerging?)

There are further complaints that the new bill looks only at the finances of applicants, and not at the interests of justice. Legal aid is available to victims under the Spanish system, but certain victims will be excluded (for instance, victims of torture or crimes against humanity). In addition, non-EU citizens who are not present regularly in Spain will not be able to claim legal aid.

We know that the state is retreating from its obligations everywhere. Some welcome that – although there is an obvious penalty for those less able to cope. We see the retreat in all areas of what were previously considered governmental responsibilities. We in the UK are not alone in our experience; nor is Europe alone. There was an intriguing story in the New York Times a few days ago that US prosecutors were reading confidential emails between prisoners and their lawyers.

‘Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that.’

Happy 65^th birthday to legal aid? Yes, of course. Many happy returns to lawyers’ increasing share in funding it? No way!

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs