Thursday, 23 June 2011

Some reflections on a shameful bill

Jonathan Djanogly MP
Updated 24th June and 30th June
Law Society Gazette - Analysis of the legal aid and sentencing bill - 30th June.

Bar Council reaction
Law Society reaction
Consumer Justice Alliance view

"A Shameful bill will make us all pay" - is the title of the Editorial in the printed version of the Law Society Gazette 23rd June which looks at the Legal Aid, Sentencing and Punishment of Offenders Bill.  The internet version publishes it under the title "Whitehall turns a blind eye to fallout from legal aid cuts."

There were over 5000 submissions to the governments' legal aid consultation and, as the Gazette points out, many of these did far more than merely register opposition.  They contained "eloquent, practical and detailed explanations of the wider consequences of the cuts proposed."  Kenneth Clarke has chosen to ignore these points and has taken "public policy into territory that shares a long border with malfeasance in public office."  The cuts do not result from negligence or incompetence but are "deliberate and doctrinaire" and turn a wilful blind eye to the consequences of the policy, as identified in the submissions.  The Gazette concludes - "This is a shameful bill."  Very strong words indeed. 

A further article in the Gazette is - "We did listen on legal aid, Djanogly insists, ...."  It appears that the Bill is to be driven through Parliament on a tight timetable.  If only Parliament and not the executive actually controlled the timetable!  Such undue haste is surely even more irresponsible given
the massive concern which this bill gives rise to.  Not to miss a political opportunity, on 20th July, Djanogly published the earnings of some lawyers from legal aid.

Writing in The Times 23rd June, Frances Gibb looks at why there appears to be much less public interest in cuts to legal aid than in reforms to the health service.  In some ways, the answer is obvious since the public - encouraged by some media articles (e.g. Daily Mail "How crime DOES pay: 500 legal aid barristers earning more than the PM") - appears to see opposition to legal aid cuts as special pleading by already rich "fat cat" lawyers anxious to remain in the opulent lifestyle to which they have become accustomed.  This issue is not actually about this at all.  It is about access to justice and people, most of whom have little knowledge of the law, should not have to struggle to represent themselves.  In fact, as The Times article points out, the average income for a young barrister in criminal work is in the region of £25,000 though some more experienced lawyers earn exceptionally high fees  though this tends to be earned in the most difficult of cases and in appeal work.

Naturally enough, there will be more public concern about health reforms since, at some stage, we might all become ill and almost all will require some form of care in old age.  Most of the population will never see the inside of a court or tribunal.  Nevertheless, for those that have to, the absence of a lawyer to represent them will be sorely felt.  Not just by the litigant but, ultimately, by society as a whole.

Clause 12:  As mentioned in the previous post on this blog, Clause 12 seems to enable some sort of "interests of justice" to be applied to advice and assistance even at the Police Station stage (e.g. where a person is being questioned - whether arrested or not).  Currently, the advice of a solicitor (or accredited representative) is provided and is free.   This possibility appears to have been quietly inserted into the bill and it did not appear in the consultation document.  Such advice has been available since the Police and Criminal Evidence Act 1984.  History is replete with examples of the Police interviewing suspects who turned out to be completely in the clear.   Any democratic Parliament worth its salt will set its face against the imposition of charging for such advice.  See The Guardian 25th June - "Legal Aid reform could end right to a free solicitor" - and note the views of Lord Macdonald QC - a former Director of Public Prosecutions.

The Parliamentary timetable:  There is little doubt that, of all Ministers in the coalition government, Kenneth Clarke has appeared to be among the most eager to make cuts.  However that may be, the second reading of this bill has been set down for 29th June.  Given the complexity of this bill, this is an exceptionally tight timetable.  Legal aid is vastly important if people are to be able to assert their rights and defend actions brought against them.  Parliament itself must stand up and reject this timetable although I would be surprised if MPs, in thrall to the executive, are actually prepared to do this.

Please look at Sound Off for Justice - "Government U-turn on listening as Clarke rushes unfair legislation through Parliament"


A detailed look at which areas of law remain eligible for civil legal aid is at "For Whom the Bill Tolls" - Nearly Legal Blog.

For more on this subject ... and other matters ... see CharonQC blog - LAG - "Follow the money"  and Edgar Venal welcomes legal aid cuts.  The Marilyn Stowe (family law) blog - "The Experts: Has the sentencing U-turn furore buried the bad news on legal aid?"

For some rather different angles see  Lawyer Watch - "Legal Aid Dutch style .." and "Should judges be trained to deal with litigants-in-person"


  1. I have a totally different view to that expressed in the general tenor of this post and the related comments. 'Most of the population will never see the inside of a court or tribunal' why then should they be forced to pay, through their taxes, for legal aid? Most of the population will not suffer subsidence to their house, be taken ill whilst abroad, suffer a loss of property through accident or fire, be involved in an incident that causes damage to their car - the state does not tax everyone to cover these contingencies for the few. The correct approach to potential legal costs is through insurance that the individual can take out, or not, as they desire. One of the reasons we are in an economic mess is that people have become used to the state doing things for them rather than taking responsibility for themselves. It is about time we grew up.

  2. Thanks for the comment. This post was aimed merely at capturing some of the immediate reactions to the Bill.

    Yes, there is this alternative viewpoint even if it assumes that people will be able to afford the necessary insurance cover and, if they cannot, then tough luck. Of course, as we all perhaps know, insurance can sometimes not be all it is "cracked up to be." Insurers are very adept at using the small print!

    Unfortunately, people do not generally-speaking choose to be in the criminal courts. It is the State which prosecutes. Anyone can, of course, end up being prosecuted for all sorts of matters such as a momentary lapse of concentration on the roads which, unfortunately, results in a fatality etc.

    Similarly, in many a civil case, the defendant did not choose to be sued but the claimant is, for some reason or other, hell bent on taking the case to court. (Alternatives to litigation are not always even considered - and, to a point, I support the government in so far as it seeks to encourage alternatives in cases where there is a sensible prospect of the alternative working).

    Failure to properly fund advice and representation in both civil and criminal matters will lead, in the longer run, to more expensive litigation. Miscarriages of justice are, as just one example, very expensive to put right.

    Unfortunately, in civil claims, the Bill will also work against your point of view about insurance. See Clause 43 - which will limit recovery of premiums through cost orders in the event of success in a case.

    Having said all of this, it has to be noted that even under present legal aid rules, many do not not qualify for free legal aid. Huge swathes of the population are already over the ungenerous income/capital limits. It is true that such persons can take out "before the event" or "after the event" insurance cover but this Bill does no favours even for such people.

    The pity is that, as the post indicates, the government has acted in a doctrinaire manner and alternative ways of saving money, put forward by responsible bodies such as the Law Society, have been largely dismissed as unacceptable.

  3. Thank you for your response, but you reflect a mind set that I disagree with. I do not expect to be in a criminal court, or a civil court, I know it is a possibility. Similarly, I did not expect two of my trees to be blown down a couple of years ago with damage to a shed and a fence. Nevertheless, I was insured against the possibilty. You insure against rare but possible contingencies. If the government has put obstacles in the way of a proper insurances market developing that is because ministers, and civil servants (probably advised by lawyers) cannot shake off a statist way of thinking. No doubt the insurance market has imperfections, and when relatively few people insure for legal contingencies it will be expensive. The answer is for the government to make it possible for that market to grow - not shut it down.

  4. "... why there appears to be much less public interest in cuts to legal aid than in reforms to the health service. " I don't know, but continue to compare medicine with law.

    There is medicine, an organized attempt by humankind, conducted over millennia, to understand and then treat illness. This is one of civilization's great creations. And there is law, another great creation of civilization, an organized way of resolving disputes, and more besides; you can provide a much better definition than can I.

    There is medicine, the vehicle that provides doctors with a comfortable and elegant career. And there is law, that does the same for lawyers.

    I don't know why lawyers are regarded more critically. Perhaps it's to do with saving lives.

  5. I can see the argument against state funded legal aid and I have some empathy with it.

    However I do think it would carry greater weight (in criminal cases) if the CPS could be relied upon to bring to court only those cases where there is strong prosecution evidence and the police have acted according to PACE rules.

    Unfortunately that isn't always true and yet, even though the CPS case is weak, there is an advantage in it being presented by a highly experienced advocate against an unrepresented, inarticulate and less quick-thinking defendant, even though magistrates/judge/clerk bend over backwards to be helpful.

    When this is combined with the damage that a conviction to do to a person, e.g. losing employment, fairness suggests there must be some funding available for those of lesser means. After all, the state does fund the prosecutor. We may call it 'the Crown' but it ain't Her Majesty that pays.

    There could be a compromise here; e.g. once a repeat offender reaches a certain level of previous convictions, all funded by legal aid, then he is barred from receiving anything further. This would tie in with the analogy of insurance that Anonymous proposes.

  6. Ed (not Bystander)24 June 2011 at 20:25


    There is already a form of compulsory insurance against needing legal advice / representation. It covers everyone, thereby spreading the cost as thinly as possible. The best thing about it is that the cost is proportional to your income! I think they call it "taxes".

    By the way, I assume you are also against paying to support those feckless people who are victims of crime (needing police) or whose dwellings catch fire (needing the fire service). You should consider living in the libertarian paradise of Somalia, I'm sure it's lovely this time of year.

  7. Gosh! exile to Somalia just for expressing a different point of view. Nevertheless, and not wishing to prolong this discussion too far. I would make two points. First, I do not advocate compulsory insurance for legal advice, I advocate voluntary insurance paid for privately. Incidentally, your argument would apply better to car insurance - which is compulsory but is provided privately. Why not have state tax funded car insurance? It would save a good deal of court and police time, there would be no uninsured drivers, and the cost would be spread over everyone proportional to their income (not their age, car size, driving experience etc etc). Secondly, I do not advocate no tax funded public services. There are good 'externality' arguments for police, fire service, health, military, education, being tax funded. These do not apply to legal aid.

  8. For my part, I do not entirely disagree with the view that there could be more use made of insurance cover in civil matters. As an example, those in various professions will insure against civil liability. Often, the policies will cover legal advice, assistance and even representation. Many a civil matter is, in reality, a battle between insurers.

    The problem is that, for many people, insurance cover (and the associated premiums) is not an option. They cannot afford it. There are also areas where the insurance companies will not go.

    The Bill has much to say about contingency, or conditional, fee arrangements. Of course, these are not available in criminal cases. Nor do insurance policies generally cover such cases.