Regular readers of this blog may appreciate that I am not exactly a fan of our current Lord Chancellor, Failing Grayling, or indeed his lapdog, Hysterical McNally. True, they have been easy targets to satirise and have provided a rich source of material to poke fun at. From dodgy expense claims, failed policies, constant switching of parties or just plain incompetence, the pair of them present themselves as the gifts which just keep giving – and as Christmas approaches, that’s no bad thing, save for one matter. That ‘one matter’ is a biggie. The two of them seem intent on dismantling the independent criminal bar and with it, our Criminal Justice System.
During the past 8 months or so I have watched whilst consultation responses have been ignored, swingeing cuts have been introduced and matters have got so bad that the criminal bar is set to hold its first strike in over 500 years of existence.
Why they are set about this course is unclear. Some argue that Failing wishes to prove he can deliver to the Treasury to further his political career and is intent on doing so at any cost. Others argue that the absence of any legal training undertaken by our current Lord Chancellor or his senior ministers render them not only incapable of fulfilling their oaths of office, but more put them in the position of children in an adults job – unknowing what to do or and unwitting of the damage they may be causing.
Today’s news, that McNally is being shuffled out with Simon Hughes MP and Lord Faulks QC coming into the MoJ is therefore a matter of celebration for anyone concerned about the state of our Justice system. Why do I say this? Lets look a little at the ‘form’ of these two new appointees.
Simon Hughes MP, deputy leader of the liberal party has always been a staunch proponent of the right to receive legal aid. Back in 2007 in response to the Constitutional Affairs Select Committee’s report into the Government’s legal aid proposals, he said:
“Today’s report is the bluntest of warnings about the folly of the Government’s legal aid plans. When a cross-party committee says that access to advice and justice could be irreversibly damaged and calls for a fundamental rethink of the proposed legal aid changes then ministers would be foolish or careless not to stop for a rethink”.
Easy to say in opposition one might justifiably think but his opposition to cuts have continued into coalition. During the passing of LASPO he tabled amendments seeking to prevent legal aid being withdrawn from complex refugee cases.
In 2011 he was part of the Lib Dem rebellion arguing that cuts to legal aid would restrict access to justice http://www.theguardian.com/law/2011/oct/28/lib-dem-legal-aid-rebellion and more recently in June he was vocal in arguing against PCT and in favour of client choice http://www.theguardian.com/law/2013/jun/26/simon-hughes-legal-aid. In October this year, during House of Commons questions he asked
“Is [Grayling] willing to look open-endedly at that fee regime to ensure that we have good lawyers who are able to represent people on legal aid in the future?”
Finally and most recently, Simon Hughes MP is part of the Joint Committee on Human Rights which recently challenged Grayling as to his proposals suggesting that he should delay implementing them until the committee had reported its concerns. http://www.lawgazette.co.uk/practice/grayling-feels-the-heat-from-committee/5038960.article
So far so good then, but what of the other appointee, Lord Faulks QC, the Tory peer. Lord Faulks brings a lifetime of experience of legal practice to his new responsibility, including having sat as a recorder of the Crown Court. He can properly be described as knowing how matters unfold inside a Crown Court. It would be easy for me to cite previous articles, debates and questions where Lord Faulks has shown himself to be a man of principle and not necessarily one to toe the party line where Legal Aid is concerned. However, were I to do that, it may be that I would have insufficient space to print in full, his contribution to the House of Lords debate last week where he spoke against the government introduction of the retrospective 30% fee cuts to VHCC cases. It is well worth a read in full, especially where he dispels the fat-cat myth and notes that if the cuts go ahead, it wont only be the lawyers who feel the pain but those who will unavoidably be denied access to justice.
My Lords, my noble friend Lord Carlile has summarised the arguments against the statutory instruments with his usual clarity and vigour, and I do not wish to weary the House with repetition. I would, however, like to add a few words and in doing so should declare an interest as a practising barrister. I am not a barrister who does criminal cases and I very rarely do cases where legal aid is involved. However, I have sat until recently as a recorder in the Crown Court and am thus familiar with our criminal justice system.
I entirely understand the desire on the part of the Government to reduce spending on legal aid. The LASPO Act was the Government’s first move in reducing costs. There is no reason why lawyers should be in any way immune from austerity, nor should justice be recognised as some sort of special case, up to a point. Nevertheless, what troubled many noble Lords in scrutinising that Bill as it went through the House was the risk of real injustice not to lawyers but to those who encountered the system and would be at risk of being denied access to justice. The Minister reassured those of us who were anxious, particularly in relation to Part 1 of the LASPO Bill, as it then was, and made some important concessions. However, the impact of the Act is going to need careful watching to ensure that real injustices do not result.
The Secretary of State has now proposed further cuts in the legal aid budget, focusing principally, but not exclusively, on criminal legal aid. Perhaps I may say how much I am looking forward to the response of the party opposite to these proposals. During the passage of the LASPO Bill, it was often said by the party opposite that, had it won the last election, it would have made significant cuts in the legal aid budget, but it was not apparent from the stance that it took to the proposals in the Bill where those cuts would in fact have occurred. On a number of occasions, the noble Lord, Lord Bach, whom I see in his place, indicated that the cuts would have come in criminal legal aid. I think that the House would regard it as important for the party opposite to be clear—if not on the detail then certainly in general terms—as to how those cuts, necessary as they were, would have fallen on criminal legal aid.
The previous Government were in the habit of publishing figures for the top earners, in both criminal and civil work, in receipt of funds from legal aid. This was no doubt seen to help in the softening-up process in relation to public opinion before any changes were made to legal aid funding. The figures were usually misleading. Unfortunately, this Government have followed suit in that respect.
In a sense, barristers are an easy target; the average member of the public has better things to do than drill down for the truth about their earnings and is happy, for the most part, to accept some of the stereotypical pictures of an overpaid man or woman in a wig quietly milking the legal aid system. However, I acquit the Secretary of State of describing barristers as “fat cats”. He has been at pains to emphasise that he is not set upon destroying the criminal Bar, and I entirely accept that that is not his intention.
Over the years, successive Governments have attempted to cut the fat off the criminal justice system and, as we have heard this evening, it is beyond argument that criminal barristers are, for the most part, very moderately paid. They are self-employed and have little muscle or obvious appeal in any negotiating process. There is no doubt that the criminal Bar is a profession in crisis. However indifferent the public may be to the individual circumstances of barristers, there will, I apprehend, be far more concern if the system as a whole is degraded.
Very high cost cases are now likely to be ignored by the most competent barristers. There will thus be a position where the most complex cases will be conducted, if the defendants are represented at all, by barristers with considerably less experience and competence than is appropriate. When cases are subject to the control of an experienced judge assisted by experienced barristers, as we have heard from noble and learned Lords, the outcome is very often a significant saving in costs through the sensible use of admissions and a clarifying of issues. This results in a saving on the legal aid bill and, just as important, a streamlined and well conducted trial process. That is unlikely to remain the case.
It is not only barristers who are alarmed at the effect of these changes but, as we have heard, judges, who will have to preside over trials in the future. Our criminal justice system, for all the criticisms that it attracts from time to time, is still held in very high regard not only by the occupants of this country but by those in other countries. Its reputation, hard won as it is, is now at serious risk.
I have referred to the Secretary of State. He of course will also have close regard to his obligations as Lord Chancellor, requiring him to ensure access to justice. I fear that the fat has been so far removed from the carcass of criminal legal aid that these further cuts really threaten our justice system. There are changes and improvements that can no doubt be made in the disposal of very high cost cases, but I venture to doubt that a simple, crude reduction in fees is the way to go about making the necessary changes. Here, I entirely agree with what the noble Baroness, Lady Deech, said. The changes in welfare are based, as she rightly said, on a principle. It is difficult to discern what principle lies behind these changes.
I ask the Minister to consult the Secretary of State for Justice and Lord Chancellor and to think very carefully about whether the effect of these changes—short, medium and long-term—are really worth the apparent saving.
I do not claim to possess great political acumen, but it seems to me that the introduction of two persons of legal background who have set out their position as being opposed to swingeing cuts recognising that their imposition can lead to a removal of access to justice represents a fundamental change of approach to the Ministry of Justice. It may be too early to call this a sea change and one must wait and see as to how their introduction to the Ministry will manifest itself, but I for one, read this as the most promising and cheery news on the legal aid front for some time.
If I were to be truly optimistic, I would opine that the unity between bar and solicitors, the prospect of the (first) day of action in the New Year and the constant criticisms of the proposed cuts have contributed to these appointments. Do I feel the wind of change blowing? Maybe. And who knows, just maybe these appointments are indicative of a realisation by the government that access to justice, like access to health and education are fundamental rights to be cherished, to be protected and to be enjoyed in a democracy.