Coalition justice 3

In spite of the imminent cuts, we need to keep calm & carry on, says Roger Smith

The Coalition government will not be remembered for its policies on civil liberties or the constitution (NLJ, 2 & 23 July 2010, pp 917 & 1027). The period from the election until the autumn will be seen as the phoney, or in Churchill’s words, “twilight” war. To come is the spending blitzkrieg that will define this government. We need to revive a theme equivalent to that current in 1939: no indiscriminate bombing of civilians.

The Ministry of Justice (MoJ) budget was £9.75bn in 2008-9. Prison is the largest source of spending: £2.34bn. Legal aid is second at £1.9bn. The courts cost £1.24bn, the National Offender Management Service £1.16bn and assorted Public Bodies £1.39bn. The figures alone explain why Ken Clarke has seen the light on non-custodial sentences. However, Clarke is a shrewd enough old bird to see off the obvious sources of attack within his own support base. Submitting himself to The Sun, he asserted that: “cuts to the MoJ imposed by the Treasury this autumn will not necessarily mean fewer prison places.” Note that “necessarily”. He continued: “I’m not cutting the prison budget by 25%. Legal aid, court administration and procurement is where our cuts can come from.”

The world of government expenditure is murky. Clarke needs to find cuts that, at least, appear to offer around £2.5bn. Clarke would barely reach his target if he cut the whole of legal aid and halved the court budget. He might figure that he can get away with counting into the savings those that he makes by failing to build the five prisons that Jack Straw would have built. But, actually, he is still going to have to cut throughout his budget.

Primed for cuts

Clarke has made it clear that he is looking at legal aid for savings: “We will seek to develop an approach which is compatible with fair and necessary access to justice for those who need it most, the protection of the most vulnerable in our society, the efficient performance of the justice system, and our international legal obligations.” It looks as if he wants savings of £500m from legal aid: he will struggle. The biggest single item in the legal aid budget is Crown Court legal aid which weighs in at around £700m. Licensed civil work weighs in at just over £600m net. Another vulnerable area must be the £200m on police station legal advice. Private family law work comes in at around the same amount. You wouldn’t want to give anyone ideas but you have to imagine that Clarke is looking at these for a combination of remuneration cuts; eligibility hikes and some surgical removal of scope from these three areas.

The crucial question is the appropriate response. Clarke has cleverly used a drive for cost reduction to make rehabilitation and community punishment respectable. Arguments about the impact on the legal profession will get nowhere—not in a context where unemployed teachers, police officers and librarians will be roaming the streets begging for a crust. To be fair, Clarke acknowledges the constraint of the European Convention: we need to make sure that its fair trial provisions are respected. Another crucial element to introduce into the legal aid debate is context. You can save on prisons if you spend on community-based punishment. You can save on legal aid if you simplify law and procedure. If you cut legal aid for family work then you have to do what some US courts have done: provide resources for self-help or inject resources into provision in the advice and law centre sector. Cut into the duty solicitor police station scheme and you have to consider allowing inferences from the exercise of the right of silence.

Principles

We need to establish some principles in the debate on cuts even though, in all foreseeable circumstances, the next few months are going to be extremely depressing. First, we need to hold the government to the principle that rich and poor alike are, in the words engraved on the US Supreme Court wall, entitled to “equal justice under the law”. The easiest way to meet that is to provide the poor with the lawyers that the rich can hire.

Second, the provisions of the European Convention describe the absolute minimum parameters of scope. They incorporate the crucial concept of equality of arms between parties in criminal and certain civil cases: that must be enshrined as a bedrock principle of the surviving redoubt.
Third, legal aid has developed over 40 years to address the particular civil problems of the poor. The result is that around £150m is spent on “poverty” law: housing, debt, mental health and so on. By all means, save money on the labyrinthine complexities of setting up the negligible numbers of community legal advice networks and community legal advice centres. However, let us hold to the principle that the state needs to help the poor with the legal problems that are particularly theirs.

Reduction of legal aid spending is probably unavoidable. But, the government cannot just cut, run and hope a satisfactory remnant of provision can be evacuated from the beaches. This is a process that, to be anything other than a major disaster, needs to be shaped by principle and carefully managed in practice. History suggests that we should not hold our breath but we certainly need to keep calm and carry on fighting for a coherent approach to policy.

Roger Smith is director of JUSTICE

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