Will the Treasury pay?

After pressure from some sections of the media and the Conservative party, the government has backed down on its plans for sentencing reform. LAG supported the reforms, which included a 50 per cent discount for early guilty pleas, and the government’s u-turn is a big disappointment to the cause for penal reform. The government's change of heart means the bill including the legal aid reforms will not be published today as had been intended, but will be delayed until next week or later. It also leaves the Ministry of Justice's (MoJ's) budget plans in disarray as a further £100m will need to be found to meet the 25 per cent cuts target imposed on it.

Officials at the Legal Services Commission have been saying for some weeks that more money might have to be found from legal aid. LAG believes that the planned cuts of £350m will be difficult to realise. We believe there is considerable disquiet in government about the impact of the cuts on social welfare law, especially on the Citizens Advice Bureaux service and the rest of the not for profit sector. The cuts are clearly in danger of undermining the 'Big Society' policy agenda and leaves the government open to the charge that they disproportionately impact on the very poorest and most vulnerable. In family legal aid, where the bulk of the cuts will fall, LAG questions whether in principle the cuts can be justified but also if they can be delivered in practice.

Ministers have already indicated that a change in the definition of domestic violence is almost certain to be included in the bill and this is welcome, but it means many more women will be eligible for legal aid, and this will increase costs. Also, the fact remains that relationships will continue to end with continuing legal ramifications, especially over child custody, which will have to be met. Cutting off legal aid just means more litigants in person increasing costs in the family courts.

The MoJ might look for cuts in criminal legal aid to meet the shortfall. However, they have limited options. They could cut rates of pay, but these were cut under the last government. Crown Court fees have been reduced by 13.5 per cent over the past two years following one of Labour’s last big decisions on legal aid policy. Rates on police station and magistrates' court work could be looked at again, but these have already been cut to the bone. Competitive tendering for the work might produce some savings, but this will take time to implement. High cost cases could be examined again, but this would be vulnerable to protest action by the Bar.

The government is happy to publish the earnings figures for the top end of the Bar (due out this week as LAG understands) as a stick used to beat legal aid lawyers. However, the political will to reduce such fees rapidly diminishes when the Bar threatens to boycott (or rather not be available for!) such work (as happened under the last government). The red top press will happily run fat cat lawyer stories to traduce legal aid, but would give much greater prominence to stories of trials of dangerous criminals collapsing due to the lack of qualified defence counsel.

In LAG’s view, the MoJ has only two options. It could cobble together another £100m in legal aid cuts, which officials will know are not deliverable, or persuade the Treasury to increase the budget by £100m. Like it or not, the backsliding on sentencing reform policy is a decision which has been taken by the Prime Minister, backed by the cabinet. Such fundamental shifts of policy need resourcing and it is the Treasury which should find the cash. If it does not, it will be unlikely that the Civil Justice, Sentencing Reform and Legal Aid Bill will make it into the legislative timetable this year. Not something LAG and the legal aid lobby would shed any tears over, but a delay which would create a considerable headache for the government.

Image: LAG