“Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system. Unfortunately, over the past decade the system has lost much of its credibility with the public. Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid. Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world.”
This is the opening paragraph by the Secretary of State for Justice introducing the consultation paper on legal aid reforms. It sets out the justification for reform as being a lack of credibility in the mind of the public and the fact, often repeated by the Secretary of State in the press, that we have one of the most expensive legal aid systems in the world. Are these statements in fact true, accurate, justified, or really worthy of belief?
I would be one of the first to acknowledge that the legal aid system probably does lack credibility in the mind of many members of the public. But is this because the system itself lacks credibility, or because the Ministry of Justice has singularly failed to explain or justify its own system (a system it introduced and administers) either through deliberate dishonesty or through gross incompetence? I would suggest that a vital function of any government ministry is to educate the public and maintain confidence in its own operations.
Why then is there a lack of credibility? The answer is clear and obvious; because the Ministry of Justice has itself, either deliberately or inadvertently, promoted and disseminated misinformation and misunderstanding. Let us take the example given by the Secretary of State of “cases which run on and on racking up large fees for a small number of lawyers”. We at the Bar are all well aware of the headline cases of the half-million pound Silks, headlines generated by MoJ press releases. But who allowed them to earn such amounts? Why the MoJ of course, so why is there no public explanation or reassurance from the MoJ? Again we all know the issues as to the reality of these ‘earnings’; whether the sums include VAT; what volume of work they represent; over what period they were incurred etc. However, why has the MoJ not previously sought to reassure the public and either maintain or restore public confidence in the system it implemented and administers, by explaining the figures and how they arise? If the lack of public confidence stems from the old myth of lawyers charging extortionate hourly rates and then racking up the hours only to submit a bill when it is too late to do anything about it, the public would surely be reassured to know that, assuming these are VHCCs, the hourly rate is set by the MoJ and work done on these cases has to be justified and agreed by MoJ representatives in advance. Surely it is in the interests of the MoJ and the credibility of the scheme it administers for the public to be informed that a tight grip is, and has been, kept on taxpayers’ money. If there is a lack of public confidence it is because of, at worst, deliberate deception by the MoJ or, at best, gross incompetence.
There are numerous other examples of spin and misinformation that members of the legal profession will be well aware of and I will not rehearse them all here. Let us instead turn to the claim that England and Wales has the most expensive legal aid system in the world. This comes from figures produced in a MoJ document titled International Comparisons of Public Expenditure on Legally Aided Services, published in September 2011 and to be found at:
It is quite true that the headline cost figure of legal aid shows the expenditure per head of population to be amongst the highest in the world. However, the document itself is full of health warnings regarding what should be read into this. Some examples of the caveats are:
· Robust international comparisons of legal aid expenditure are complex due to differences in legal systems, political, cultural and religious traditions, varying quality across sources and data collection.
· The estimated £39 per head legal aid expenditure in England and Wales in 2008/9 (and 2009/10) is also higher than other European Union (EU) countries in 2008, such as £5 in France, £5 in Spain, £13 in Denmark, £15 in Sweden, £25 in the Netherlands and £31 in Norway. However, these countries tend to have different legal systems which explain at least part of the difference.
· A combination of a larger number of cases supported and higher costs per case means that expenditure on legal aid is higher in England and Wales than other countries reviewed. The University of York Study for MoJ found that expenditure was higher in England and Wales because more cases per head are funded for criminal and non-criminal areas; more criminal suspects are brought to court, and more of this group are given criminal legal aid; and there is higher spending per case on criminal and non-criminal cases relative to other countries.
· Differences in expenditure between countries will reflect differences in the justice system. Costs in the justice system are distributed differently, depending on the nature of the justice system and traditions of each jurisdiction. For example, a more inquisitorial style system may spend more on inquisitors and the judiciary, but have a lower legal aid spend as the examining authorities will undertake much of the work traditionally conducted by defence lawyers in England and Wales.
· Even among countries with similar legal traditions as the UK (e.g. New Zealand), a range of factors are likely to contribute to differences in costs per case. These include differences in criminal procedure (e.g. length and nature of proceedings) underlying cost structure in the provision of legal services (e.g. differences in regulatory burdens to legal aid suppliers) and level of competition in the market.
One could argue that the Chinese Army is more expensive than the British Army, but most people would recognise at once that this is due to it being substantially larger, rather than Chinese soldiers being overpaid in comparison with their British counterparts.
A significant factor in the Criminal Legal Aid budget is the higher crime rate in England and Wales (whether we have more natural criminals or just more laws is open to debate) but EU statistics to be found at:
provide an interesting table:
England & Wales 4,334
If you want to play the statistics game, Norway has one-fifteenth the crime of the UK, but expenditure on legal aid is only £8 less per head of population. Of course, Germany has more reported crime than we do and yet its legal aid expenditure is considerably less per head of population than that of England and Wales (in 2006 it was £5 per head, as opposed to £37 for England and Wales). Italy and Spain both had less reported crime and their legal aid expenditure per head of population during the same period was £1 and £3 per head respectively. So that just goes to show that the Secretary of State and the MoJ are correct and the Germans, and even the Italians and the Spanish are getting it right? Well, no. Remember the caveat in the MoJ’s statistics that different legal systems might shift expenditure away from legal aid towards other areas, such as the courts in an inquisitorial system? The EU CEPEJ comparison of comparative efficiencies in the justice systems of member states, to be found at:
reveals at page 19 that the respective total combined public budgets in Euros for courts, prosecution and legal aid in 2010 were as follows:
England and Wales 4, 458, 810, 000
Germany 8, 171, 522, 000
Italy 4, 427, 485, 116
Spain 4, 202, 016, 219
France 3, 935, 548, 101
Certainly, France is paying less than us but the note to these figures remind us that the French entry includes the fact that in France lawyers involved in this work receive a reduced rate of vat of 5.5 % (remember the CBA suggestion to zero rate legal aid and prosecution fees?). As the number of reported crimes for Spain and Italy are just over half that for England and Wales and those for France about two-thirds, we seem to be pretty cost effective.
So, if there is a lack of public confidence in the legal aid system, whose fault is this and is it as a result of deliberate dishonesty or sheer gross incompetence on the part of the very people responsible for creating and administering it?
Is the legal aid system in the UK the most expensive in the world as an overall part of the cost of the criminal justice system or is this a gross distortion of the true position?
Secretary of State, if you produced this preamble to the consultation in good faith, as a result of information given to you by your department, you may wish to ask some searching questions as to whether both you and the public are being misled, and if so why. Is it as a result of deliberate dishonesty or just incompetence?
That deals with the first paragraph of a document running to 142 pages. How many other distortions are contained thereafter?