The Criminal Bar go on ‘strike’ today in protest at the Government’s cuts to legal aid, the simple effect of which will be to reduce access to justice and increase the risks of the guilty going free and the innocent going to prison.
This strike is about proposed fee cuts of between 17.5 and 30%. (Don’t forget, as well, the cuts that came in on 2 December 2013 of 47% to civil barrister fees.) Cuts of this level compare particularly unfavourably to the de facto cuts for the public sector workers, where pay rises have been tied to 1%.
The Ministry of Justice will be trying to divert attention today from the real issues. It will be talking about how well paid barristers are.
These are some of the myths they will use; but bear in mind they are only myths. The case for the cuts is both intellectually and morally bankrupt.
1. The cost of legal aid is spiralling and the system is inefficient.
Simply not true. The legal aid spend is falling. Spending on legal aid for 2012/13 decreased by 8% compared to the previous year and has reduced by 20% since 2009/10.
Chris Grayling has admitted before the JCHR that the real reason behind his cuts is ideology and not reason.
2. Legal aid lawyers are fat cats.
Not true. The first Ministry of Justice consultation recognised that 65% of the Criminal Bar have an annual fee income of £50,000. Fee income is not the same as take-home pay. First, you must take off VAT (20%). Then Chambers expenses and overheads (20%). Then travel (maybe £20 a day). Then tax. What you’re left with is not the salary of a fat cat.
The real problem here is demonstrating to newcomers to the law that there is no future in the profession. It will lead to a haemorrhaging of talent in a system that depends for its effectiveness and fairness on both sides being equally well represented by good lawyers. Remember these lawyers will be working 60-80 hour weeks for pay of below £15,000 a year for a few years before even hoping to earn marginally more. Many of the hours these lawyers put in will not be paid for by legal aid at all. It can lead to pro rated hourly rates as low as perhaps £3.
This also destroys the case for saying that the cuts will lead to a more sustainable legal aid system – it won’t. Instead it will lead to a cut-rate system of justice for the poor, while the rich can pay for expensive lawyers. In effect, the more you can pay, the more likely you will be to get away with it. That is no-one’s idea of a perfect legal system.
3. Judicial review cases are rarely successful and waste money.
All legally aided cases must have at least a 50% chance of success. In addition the Government has misrepresented the statistics in suggesting that the rate of success is very low. In fact the majority of cases settle before going to a hearing, mostly because the Government or local authority recognises that they’ve made a mistake and take the rational decision to concede and save the costs of a trial.
Judicial review, at any rate, is a fundamental means by which the citizen can hold the state to account. Without it, our democracy would be weaker.
4. We spend more on legal aid than any other country in the world.
This is the most common lie. Comparisons of legal aid spending are not so straightforward – different countries have different legal systems.
Most European countries have an inquisitorial system in which the judge plays multiple roles and there is much less need for lawyers. Because of this more money is spent on judges and less on lawyers.
Figures compiled by the NAO on European spending on criminal courts, prosecution and legal aid as a percentage of GDP per capita demonstrate that expenditure in England and Wales is average.
Similarly, a study by the European Commission for the Efficiency of Justice comparing the European legal systems ranked England and Wales 13th out of 41 countries, based on the legal spend per inhabitant. It was €80.80 in England and Wales, smaller than the spend in Spain, Norway, Austria and Belgium and tiny compared to the spend in Switzerland (€167.10) and Luxembourg (€137.70).
5. The cuts only affect criminals and foreigners
Not true. Changes to judicial review will affect everyone. Areas already out-of-scope will affect anyone unfortunate enough to have to claim state benefits and receive a bad decision from the DWP (remember up to 50% of appeals against benefits decisions succeed).
Those out-of-scope areas affect British citizens who want to bring their partners or children to the UK and who receive a bad decision from the Home Office (remember, again, for managed migration 50% of appeals succeed).
A new cap of £37,500 will be imposed on Crown Court legal aid, meaning many middle class families could be in for a particularly expensive shock if ever accused of a crime. (Under the old system, of course, they could still be made to pay back the legal aid that they received if found guilty. This way they have to pay their own costs upfront even if they are later found not guilty.)
6. Other services will fill the gap
Extremely unlikely. The changes will lead to advice deserts, such that many people in need will simply not be able to find a lawyer to help them.
Charity work is fine and is very helpful in certain cases. But it can’t support universal and universally good quality provision in the same way that state-funded advice centres and lawyers have done.
It’s easy to dislike lawyers. But this is not just about lawyers. It is first about the importance of anyone being able to access the law and courts in this country, not just the wealthy.