'The law is closed!'

We need a new Charles Dickens, to highlight the miseries of our disintegrating systems, and in particular our legal system.

Dickens (pictured below) famously worked in an attorneys’ office in Gray’s Inn, and subsequently became a law reporter, which helped form the background of his descriptions of the law, including Jarndyce v Jarndyce in ‘Bleak House’.

I can just imagine his caricature of a lord chancellor from the present day. This is not our current lord chancellor, but a fictional lord chancellor presiding over similar policies. Glee and miserliness fleck his ceremonial robes as he shouts ‘The law is closed!’. At his feet, criminal and civil legal aid applicants beg for a lawyer to represent them, as their local law firms can no longer afford to help, while in the background a court building crumbles and collapses.

There are serious issues at stake, as we all know.

On the criminal side, the lord chancellor has decided not to implement fully the pay results recommended by an independent review for legal aid solicitors. He has also decided that a royal commission to improve the efficiency and effectiveness of the criminal justice system, which was announced in the Queen’s speech following the December 2019 general election, should be kicked into the long grass.

On the civil side, he has just announced a major review of civil legal aid, to report in 2024 and be implemented, if at all, in 2025 after a general election. Ominously, it will ‘consider value for taxpayers’ money of future policy options and take into account wider budgetary restraints on the department’. That will enable our Dickens’ caricature of a fictional lord chancellor to add a further word to his announcement: ‘The law is closed forever!’

To stay with the civil side, there are already numerous studies on civil legal aid. The Law Society concluded its own in 2021 with very useful facts and figures. But the lord chancellor will nevertheless take a gigantic magnifying glass from the pocket of his robes and search dramatically for new facts and figures, for at least two years.

The civil legal aid review will also include ‘an assessment of how such systems work in other comparable countries’. The Council of Europe has been undertaking such assessments for years. In the ‘European judicial systems CEPEJ Evaluation Report 2022’ – where CEPEJ is the French acronym for the European Commission for the Efficiency of Justice – there is already extensive comparative data on the state of European legal aid systems.

Hello, lord chancellor – if you point your magnifying glass to pages 35-42 of the report, you will find some of the information you are seeking. Since we still remain a member of the Council of Europe – despite the home secretary’s wishes – I am sure that they will let you look at the raw data behind the graphs and the comparisons. These show a mixed picture for the UK: a precipitous, and highlighted, drop in the legal aid budget for England and Wales of 28% between 2018-2020, and an otherwise average performance relative to our size and wealth.

The Law Society, and the legal profession in general, have two choices: to watch and wait and beg while this performance plays out; or to act as if we have agency in our own affairs. Given the slide to catastrophe in civil and criminal legal aid, I suggest the latter.

For instance, the Law Society has admirable convening powers. Rather than wait for two years, we could set up our own review: call together some of the great and good, use our previous reports, the Council of Europe data and other source material, and produce recommendations more quickly than the government, which we can use to good effect in the future debate and general election.

I would recommend that this review looks not only at improvements to, or even overhaul of, our current system, but at something completely new.

If we come to the conclusion that no government in the foreseeable future is going to supply the legal aid system with the money it needs, given the excessive demands on the public purse from the health and social care systems, as well as defence, maybe we need to think the unthinkable: what about the Japanese system of the bar funding lawyers to go to areas where there are few lawyers providing certain services? Or the French system of using the interest on lawyers’ clients’ money for beneficial purposes?

In the meanwhile, I wish the new Dickens would hurry up and put pen to paper. The current decay is ripe for savaging. Satire and angry fiction can lead to substantive reform.

Until then, the fictional lord chancellor is looking around for further developments he can prevent, further help he can disregard with a show of his mace and a swirl of his full-bottomed wig.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society