Wednesday, 31 March 2010
Legal aid debate
'Legal Aid after the Election' was the title of the LawWorks debate last night. An invited audience heard from the legal aid minister Lord Bach, the two Shadow Justice Secretaries, Conservative Dominic Grieve QC MP and Liberal Democrat David Howarth MP, and Des Hudson, chief executive of the Law Society. Perhaps ominously, what was striking was the remarkable degree of agreement between the politicians on legal aid policy.
Paul Newdick, the chairperson of legal charity LawWorks, which organises pro bono work for city lawyers, said in opening the proceedings that: 'Pro bono is an adjunct to, not a substitute for, legal aid and it is important that the government is constantly reminded one is no substitute for the other.' This was clearly aimed at both reassuring the legal aid lawyers in the room and as a warning shot to the politicians.
Cutting to the chase Lord Bach said: 'Politicians should tell the truth and the truth is legal aid is liable for more cuts under any government.' In response to this comment, Dominic Grieve observed that the budget had planned a 17 per cent cut in public expenditure which would include legal aid. In his view the current legal aid system is 'not salvageable' and what is needed for the future is 'thinking creatively perhaps on a cross-party basis'. David Howarth also said: 'There would be no new money for legal aid.' He also emphasised the need to look at the cost drivers in legal aid such as experts’ fees and fees for high cost criminal cases.
Both Lord Bach and Dominic Grieve agreed that the legal aid fund needed to be compensated by other arms of government for policy changes which lead to increased demand for legal aid, but both acknowledged the difficulties in doing this. There was also consensus on the need to take direct control of the Legal Services Commission (LSC). Dominic Grieve said that if the government had not moved to do so, the Conservatives would have, if elected. He could not resist a swipe at the government, observing: 'The LSC was a creation of the present government. One of the motives behind its creation was to distance the government from difficult policy decisions.'
One point of significant difference between the two main political parties seemed to be over the question of competitive tendering for criminal legal aid. Lord Bach said that as a former criminal legal aid barrister he had taken some convincing that this was the way forward. Referring to the plans announced last week (see post from 22 March), he said that he was 'firmly of the view this was the only way criminal legal aid can work'. In contrast Dominic Grieve said that: 'Best value tendering is not the best approach' and, if elected, the Conservatives would carry out a legal aid review before making any changes to policy.
Des Hudson argued that legal aid was a 'frontline service as important as health or education' and that money should be found to fund it. He acknowledged that something had to be done as the present criminal legal aid system was not sustainable, but said: 'I have severe reservations about whether the government’s plans [for criminal legal aid] can be implemented.' He also suggested cash could be found for legal aid from other parts of government, for example from the '£2.5 billion a year that goes on management consultants'. In contrast to the politicians he emphasised that: 'There can be no rule of law without access to justice.'
From LAG’s point of view the debate last night indicated that, whoever forms the next government, the current policy of trying to cut back on expenditure will continue. Some of the Conservatives' ideas about bringing new money into the system, such as a levy on client account interest, are eye-catching but they will only bring in relatively small sums and there are no guarantees that the cash will not be swallowed up by the Treasury. The problem is, as argued last night: 'Legal aid is not a vote winner', but Des Hudson was right in arguing that it is essential to maintain the rule of law. Whichever party wins the general election will need to be constantly reminded of this fact in the difficult months ahead.