Jan Zeber on why the legal aid cuts are costing the taxpayer more money than they save
by Steve Wedd
Jan Zeber graduated in law in 2014 from the University of Bristol, where he chaired the Freedom Society. He is now a Researcher at the TaxPayers’ Alliance.
Research last year showed that the Government wastes £120 billion a year – it’s that stark fact that has made cutting waste such a crucial part of any campaign for lower taxes. That means cracking down on all sorts of spending and the functions of government that aren’t crucial to a properly-run country – but access to justice should not be in that category. Sadly, with legal aid cuts, politics might have trumped pragmatism.
Empowering people against the might of the authorities is a task that we at the TaxPayers’ Alliance share with the Criminal Bar, and other branches of the legal profession that rely on legal aid. In contrast to molly-coddled public sector bureaucrats enjoying “flexi-time” hours and cosy pensions, letting a junior barrister make a modest living by ensuring justice is served to those who stand accused of crime, are embroiled in child custody battles or were unfairly treated by the machine of the public administration (working seven days a week with no other benefits, I might add) seems like the proper way to spend taxpayers’ money. The right to access justice is a fundamental one.
Nevertheless, when in 2010 it was decided that the Ministry of Justice should bear its share of cuts, the £2 billion legal aid budget was not protected. Ken Clarke, then Lord Chancellor and Justice Secretary, was charged with delivering £2 billion (about 22 per cent) worth of savings from his department.
His plans showed that there were, and still are, areas to find savings in the Ministry of Justice. First in the line of fire, quite rightly, was the slack in MoJ governance – reducing the number of and streamlining the department’s quangos, restricting recruitment to key posts and scaling back consultancy engagement. Underused county and magistrates courts were also asked to contribute. But as close scrutiny by the National Audit Office and the Public Accounts Committee revealed, a worryingly large proportion of proposed savings look dubious not just in terms of justice, but also whether they are savings at all – many are expected to cause higher costs elsewhere.
Legal aid is a particularly stark example. The rise of litigants in person, that is people involved in court proceedings who do not have legal representation due to funding not being available, causes costly delays to a process which can hardly be described as justice. Further, given that legal aid is mainly used for areas of law which affect public services such as clinical negligence, social welfare, family law and of course criminal law, any creaks in the machine caused by reduced funding will have a knock-on effect on the cost of these services. It is estimated, for example, that the NHS may shoulder £3 for every £1 slashed of the clinical negligence legal aid budget, as part of a total of £193 million of unintended costs in other sectors, throwing up serious questions over the MoJ ‘savings’.
Instead of exerting further pressure on the functioning of the justice system, already stretched to the limits of legitimacy, the incumbent Justice Secretary should consider making savings in areas which, if scaled back, will prompt innovation and streamline the system.
In the criminal division, aside from overall better management of the system in order to reduce cases with unnecessary delays, there is scope for greater use of magistrates’ courts, especially if we allowed Justices of the Peace to hand down more severe sentences. A Justice of the Peace is a volunteer, and an average magistrates’ court case costs £3,000 less than exactly the same case would cost in the crown court. Many less serious white-collar crimes could be taken out of the courts altogether and be dealt with as a regulatory matter, the punishment being disqualification as a director, for example.
What often is missing from this debate is an emphasis on the need for all parties to accept that the times they are a-changin’. There are good reasons for opposing too much streamlining and being weary of ‘conveyor-belt justice’, but the least that is expected from the legal profession is co-operation in finding the best route forward. As the High Court found two months ago as a result of a legal challenge to the consultation process, ‘something clearly did go wrong’.
Whether the Government chose to omit representations from criminal legal aid lawyers on crucial issues because they knew they would not like what they heard, or because they knew what they hear will not be helpful and co-operative, remains unclear. But it does show that both parties would do well to look past prejudice and vested interest, and start thinking about what is best for the general public.