The Blog

'Defend the Children of the Poor and Punish the Wrongdoer': Why the Government's Legal Aid Reforms are a Recipe for Injustice

The role of the advocate is an ancient one. The right of a person to be represented before the civil power has been and is fundamental to all legal systems, one maintained even where the process is little more than a smoke-screen designed to give state persecution the veneer of legitimacy.

The role of the advocate is an ancient one. The right of a person to be represented before the civil power has been and is fundamental to all legal systems, one maintained even where the process is little more than a smoke-screen designed to give state persecution the veneer of legitimacy.

The need for this figure - adviser, intermediary, representative - is at the heart of any fair justice system. An individual in the legal process is likely to be overwhelmed: cast in unfamiliar surroundings, made to deal with laws over which he has no understanding and facing a powerful, richer adversary.

The youth, with little education, charged with a serious criminal offence; the mother whose child may be taken into care; the employee sacked by a big corporation; or the victim of catastrophic injuries suing the hospital that caused them. For these vulnerable people must the advocate speak; for them must he challenge the state or the powerful to present and investigate fairly all the evidence; and for them, most importantly of all, must he challenge the case against them and ensure that their voice is heard.

Any fair society should thus be judged by the quality of representation it provides to the most vulnerable. There are many in the developed world that don't: the State of Mississipi, for example, restricts to $1,000 the amount of public funds that can be spent on the defence in a Capital charge, providing sub-standard justice by overworked, poorly qualified and inexperienced lawyers leading to miscarriages of justice and defendants languishing in prison for years before trial. This is a practise all too typical throughout the United States (it isn't restricted to the Deep South - North Dakota spends even less per head on indigent defendants than Mississippi); and scars the county's ability to call itself a member of the civilised world.

England and Scotland's legal aid systems, on the other hand, are predicated on the principle that the quality and seniority of the publicly funded lawyer is determined not by ability to pay but by the gravity or complexity of the case. This is hardly an unfamiliar principle: few would question that a heart transplant on the NHS should only be undertaken by the most experienced cardio-vascular surgeon. Yet it is somehow less recognised by the public at large. Perhaps this is due in large part to an old prejudice: most can see that the risk of ill-health is universal but few recognise that all are at risk of being accused of a crime we did not commit, of being at risk of homelessness or of losing our child to the state. Few, in fact, appreciate the immense power of the state until it is ranged against them. Another version of the dangerous old canard 'if you've nothing to fear, you've nothing to hide'.

This principle of legal aid is maintained in two ways. Firstly, the Legal Services Commission pays higher fees for the gravest and most complex cases, ensuring that the best advocates will accept instructions in those cases. Secondly, and no less importantly, the existence of a referral profession of specialist barristers allows any solicitors' firm, wherever it is based and however general its practice, to instruct (in those most serious cases) practitioners at the forefront of the profession to guarantee their clients the best representation and a fair trial.

It is with these principles in mind that we should judge the government's proposals to 'reform' legal aid. Will distinguished Queen's Counsel still be available to defend in the most serious criminal cases? Will legal aid protect the poorest families when going through the heart-ache of custody battles? Or will ever declining fees drive many of the best advocates away from the publicly funded Bar, damaging not those barristers (who will be well able to rely on private work elsewhere) but the poorest and the most vulnerable?

Sadly, the government appears to have failed even to recognise the danger of reducing the availability of legal aid (including in child custody cases, which the Chairman of the WI has argued persuasively would affect many vulnerable women; and medical negligence cases, which Lord Justice Jackson has attacked stridently) and of reducing fees for the most complex cases. As the Criminal Bar Association has argued, members of the Bar are leaving the publicly funded profession in droves. Every criminal Chambers is doing all it can to move into privately funded areas of quasi-criminal law and fewer top graduates are entering - or can afford to enter - the publicly funded side of the profession. While the Bar remains large, it can only survive for so long the torture of death by a thousand cuts.

Indeed, one of the government's proposals directly undermines the provision of top advocates for the most serious cases: a decision to stop paying a premium to QCs and leading barristers in murder and manslaughter cases. The CBA is right to argue that this appears to be an attempt to reduce the number of QCs representing those accused of the gravest crimes; something that accords with the experience of barristers and judges dealing with these cases.

Together with the increasing numbers of solicitors conducting their own advocacy (often without advising clients of the right they have to instruct independent barristers), the English criminal justice system is, slowly but surely, moving towards a US model: where the poor will be limited to local representatives for all cases, even the gravest, while the best in the profession represent only those with the fattest wallets. Is this really what we want? The man on the Clapham Omnibus may enjoy ridiculing the fat cat barrister; but he will miss his profession when it is gone.