Unpleasant truths' is the title of an article by Roger Smith (Visiting Professor London South Bank University) published in the Law Society Gazette 14th April 2014. Smith begins by noting that - 'We are not winning the battle on legal aid.' This is not the fault of lawyers, many of whom have fought against cuts to legal aid and other 'justice' reforms introduced by the coalition government since 2010. The country is in limbo with massive cuts being imposed over almost the entire field of public expenditure. Nowhere near enough voters realise just how much of value is being lost. Smith argues that the public fight must continue if only to deter worse. Nevertheless, 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. Therefore, Smith argues, a fundamental 'reconceptualisation' is required.
Such an exercise
would require a new and comprehensive justice package. Could savings be made to allow money to be diverted to legal aid or to some other form of assistance for those needing legal help? Smith looks at the appellate courts as a possible saving. In an age of austerity can we truly afford to continue with a Court of Appeal (with some 30 salaried judges at salaries of around £200,000 p.a.) and with the Supreme Court of the United Kingdom (UKSC)? Had the Liberal government of 1873 had its way, nobody alive today would remember the House of Lords in its judicial capacity. Smith goes on to ask whether the judicialisation of tribunals - (with a labyrinthine structure of Upper Tier Tribunal, Lower Tier Tribunal, each with Chambers and salaried judges) - has been taken too far.
As for legal aid, Smith points out that there is plenty of evidence from other jurisdictions to show that salaried services (such as the Public Defender Service) can be made to work - both for lawyers and clients - particularly if their independence from government is secured. Quite what "can be made to work" entails is another question and we all know of stories of death penalty cases in the USA with the defendant offered poor quality advocacy (see Death Penalty Information).
Cuts to legal aid are hollowing out the State's commitment to fundamental fairness for the poor as well as the rich. Smith ends by asking - 'If we all agree that the current situation is unsustainable, how do we intend to go forward?'
It is highly unlikely that any change of government in 2015 will result in an major reversal of the cuts to legal aid. The cuts are not simply about money because there is money for other things considered by government to be of greater importance. Overseas aid and HS2 offer two examples. Nevertheless, it is inevitable that a different future for justice is going to have to be considered.
In a recent speech, (covered in a previous post), the Lord Chief Justice (Lord Thomas) spoke of "Reshaping Justice". Lord Thomas said - ' ... our system of justice does need reshaping to deal with the fundamental
change that is occurring in the role of the State. It is retrenching.
The budget for justice is being reduced substantially. We must ensure
that our system remains able to maintain the rule of law by
administering justice effectively, speedily and impartially in this new
age.' Radical thinking was required and Lord Thomas called on bodies such as JUSTICE to put forward ideas.
A independently produced report is that by the LOW COMMISSION which
suggests a national strategy for advice and legal support. The
Commission calls for a £100m implementation fund with half the money
coming from government and half from other sources, including interest
from lawyer client accounts and a levy on payday loan companies.
However, the report stops short of calling for full reinstatement of
civil legal aid. Policy Exchange put forward a report entitled - "Future courts: A new vision for summary justice."
Meanwhile, there are more and more litigants in person and so-called MacKenzie Friends are increasing in numbers (The Guardian 17th April - and Law Society Gazette) where it is reported that the Legal Services Consumer Panel believes there should be a culture
shift in the legal market to improve access to justice following the
government's withdrawal of legal aid for many areas of civil litigation.
There are other issues not referred to by Mr Smith's article. Serious questions now exist as to the ability of the average citizen to instigate judicial review. Then there is the prospect of individuals facing financial ruin even if they are acquitted in the Crown Court. In the absence of legal aid to fund litigation it is obvious that many young lawyers will be unable to gain the experience of those who have preceded them in the last 50 years. In the longer term,this will be likely to impact on the quality of the judiciary. Deep problems are also likely to emerge about human rights protection in the event of the government establishing some form of new relationship with the European Convention on Human Rights.
The road ahead may not be clear but changes to government policy are forcing change. Ideas are emerging for reform to the courts and procedure and for new approaches to dispute resolution. The challenge will be to gather those ideas together and to produce a coherent package offering the citizen access to justice which is proportionate to the dispute in question and available at an affordable price.
Finally, the reader may be interested in a new book available via itunes - Steve Cornforth Blog - Saving Justice. In this book Patrick
Torsney has gathered together the thoughts of 58 bloggers, including items from Law and Lawyers (!). Across all of the blogs runs a theme of almost systematic
dismantling of justice for ordinary people. This is a dismantling without any proper thought as to what will replace it. Depressing as it is, this is why it is necessary to look seriously at the alternatives.