My Lords, we heard an interesting legislative programme from Her Majesty the Queen, with particular implications for our constitution and legal system. The noble Lord, Lord McNally, emphasised the Government’s focus on the criminal law, but all legislation of the past and the laws to come depend on enforceability and the rule of law. They in turn depend on fair access to the courts and to legal advice from independent lawyers. The fascinating speech by the noble Lord, Lord Phillips, has shown just how necessary that is. For decades, British citizens have had the advantage of assistance through legal aid and the pro bono services of lawyers, volunteers and citizens advice bureaux. The new proposals, however, will damage our system, the best justice system in the world and one that attracts billions from foreign clients.
I declare an interest as chairman of the Bar Standards Board, which regulates barristers, but I must clarify that I am not speaking for the professional interests or the income of barristers but in support of a legal objective that the previous Government set up for the legal profession and its regulation in the Legal Services Act 2007, to which I will revert. The regulation that my board does is carried out entirely in the public interest.
Nevertheless, I support what the noble Lord, Lord Thomas, said not long ago, although I come to it from a different perspective. It is self-evident that there cannot be a bottomless fund for legal aid but the wrong impression has been given in the media in relation to the sums and how they are allocated. The large sums said to be spent on legal representation do not take into account the overheads of the self-employed or that the fees may represent several years work. Only a very small number of cases dealing with the most serious crimes—terrorism and the like—command large resources. Many young barristers practising publicly funded criminal law are earning around £25,000 a year or less. Not only will they abandon it, depriving the courts of good judges in future years, but the way in which the legal system is now being treated is putting an end to the goal of social mobility and diversity in the profession that the Government alleged was so important.
I would feel hypocritical going to visit schools, or encouraging other lawyers to go to schools, to encourage children from underprivileged backgrounds, where no one in the family has ever qualified as a lawyer, to take up criminal law or family law, which is also largely publicly funded. It is misleading to draw a picture of possibilities when not only will they incur debt at university but will find after qualification that there are no jobs open to them at the starting line of the criminal bar, in the magistrates’ courts and so on, where formerly a newly qualified young barrister could expect to earn a modest amount.
In addition to the cuts in legal aid already brought in under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Ministry of Justice is now consulting, as we have heard, on making savings of £220 million a year by 2018 by cutting prices. This it can do without the opportunity to debate the impact in this House. The ministry is proposing competition in the provision of criminal representation. Where no competition is proposed for now—that is, in Crown Court advocacy and very high-cost cases—a new fee framework is proposed that will encourage early pleas of guilty, for the longer a case lasts the less the daily fee will be. There must be a case to fear undue pressure to plead guilty caused by the new fee structure proposed. Solicitor representation fees in family cases will be reduced by 10%.
Price-competitive tendering may sound reasonable in criminal representation but it will not be genuine under the proposals, as the market is not to be left to itself: a new price cap will be set at 17.5% below current fees. The new system seems to favour tendering only by new commercial outfits and large firms, as the noble Lord, Lord Thomas, said, leaving high street solicitors to go to the wall. The client will not be able to choose who represents them and the relationship built up by advocates and their clients over the years will count for naught. There will be a two-tier system: a choice of good advocates for those who pay themselves and take what comes for those who need to be funded.
What will be the effect? One must put to one side the picture drawn by the media of money being wasted on representing undeserving criminals. This is about everyone who is ever in court, rightly or wrongly, and all are innocent until proven guilty. Legal aid is about ensuring that right is done. If anyone is familiar with “The Winslow Boy”, they will know graphically the emotional stigma of the wrongly made accusation and how one must strive to do justice, even for the most unappealing—a very topical issue. Parents need legal advice for their children. All of us need to be able to challenge the state when officials may have overstepped the mark. The person accused of wrongdoing ought to be able to take advice from a lawyer he knows and trusts, and who can act expeditiously to prove his innocence. Cuts in family law will bear especially hard on women, who are more likely to be carers of children and have less knowledge of the law and details of ownership of the family assets. Mediation is not the answer. If it were, we would not need a legal system at all.
Already, litigants excluded from legal aid have to resort to self representation. While the Bar Council has, one might say contrary to its own interests, put out a booklet to help self-representing litigants, judges will have their time wasted, the court system will slow down, and more money will be lost in the long run. Very recently, the damage being caused was commented on by Lord Justice Ward, who said in a judgment that,
“the case highlights the difficulties increasingly encountered by the judiciary at all levels when dealing with litigants in person ... Judges should not have to micro-manage cases, coaxing and cajoling the parties to focus on the issues that need to be resolved … saving expenditure in one public department in this instance simply increases it in the courts … justice will be ill served by this emasculation of legal aid”.
Cutting legal aid to save costs carries the risk of becoming a classic example of false economy, and there will be no parity of justice when one party is represented and the other is not. The Government must be close to finding themselves in breach of Article 6 of the European Convention on Human Rights, which says that everyone facing a criminal charge is entitled to a fair and public hearing and has the minimum rights of,
“adequate time and facilities for the preparation of his defence; to defend himself in person or through legal assistance of his own choosing”.
The cuts in aid and in fees are such as to endanger the future of the profession. They also offend against each and every one of the objectives of Section 1 of the Legal Services Act 2007, which include,
“improving access to justice … protecting the interests of consumers … encouraging an independent, strong, diverse and effective legal profession”,
and supporting “the rule of law”.
Given that there will be no assistance for most divorcees, it is urgent that the law on financial provision on divorce be reformed to make it user-friendly. The sums involved amount to £220 million a year. One could make savings by reforming the law of financial provision on divorce. It is now so complicated, uncertain and unfair that it is almost impossible to predict the outcome of litigation about dividing family assets on divorce. There are cases where almost as much is spent on fighting as the assets themselves are worth. There have even been cases where the entire assets are spent on costs. That is because the law is unjust and based on old-fashioned principles without regard to today’s high breakdown rates, women’s equality and independent earning power. The Law Commission has recently put forward for consideration proposals to replace the current unsatisfactory statutory provisions on financial provision in divorce with new ones that might rely on a formulaic calculation. While this is a blunt instrument, there is much to be said for having a law that enables separating parties to calculate for themselves how their assets should be divided. An alternative, which I am minded to put forward for your Lordships’ consideration in a Private Member’s Bill, is to replace the English law on financial provision on divorce with the Scots law. That law by and large provides for the equal sharing of family property and limited ongoing financial support. It works well in Scotland, there are few reported cases and there is no reason why it should not be imported here.
Of course, agreements between spouses and cohabitants about sharing property on separation should be respected and not subjected to dissection by the courts. In other words, we should recognise pre-nups and do away with expensive litigation over their validity and the substance of the issues. Our justice system need not be as costly as it is if, in family law at least, the parties are treated as adults and given clear guidelines about the division of their assets.
Finally, one should get the extent of legal aid savings into perspective. Great damage is about to be done to the court system, litigants, the legal profession, diversity and the rule of law to effect a saving of £220 million a year. We have just spent £10 billion on the Olympics, with so far not much legacy. The Government have recently committed to spending £60 million on converting the Olympic stadium into a football ground for West Ham. We have lost our moral compass if we think that it is preferable to spend on the Olympic stadium rather than on legal aid, to give tax relief on wind turbines rather than spend sums on access to justice, and when we send overseas aid to Argentina rather than supporting the rule of law at home. The requisite savings could be made if alleged criminals’ assets were unfrozen and used to fund their legal representation as the litigation unfolds. I am sure that everyone in this House has a taxpayer-funded project in mind that is unnecessary and less significant than cutting access to justice. If the legal system and the citizen’s ability to use it are damaged, then the fine words of a new legislative programme will never be any more than that.