Reviewers, lies & statistics

Let us remember the names of the reviewers and researchers of legal aid since 1997: Sir Peter Middleton, Frontier Economics, Matrix Consultancy, Lord Carter of Coles, the (hapless) in-house Fundamental team and now Sir Ian McGhee.

As Labour came into office, it asked a retired banker what to do. As it seemed likely to leave, it asked a former civil servant the same question.

Sir Ian is being guided to make recommendations about splitting the legal aid fund into criminal and civil budgets. The intention is to encourage cuts to criminal provision to preserve the erosion of civil funds which happens under a combined budget.

One of Labour’s great shames is, indeed, the extent to which civil legal eligibility has plummeted—from 52% of the population in 1998 to 29% in 2007.

However, if ministers wanted to increase civil provision then they can find the money from criminal legal aid now. The number of funds makes no difference. The truth is that they don’t really know what to do.
A major symptom of the Ministry of Justice’s problem is that it doesn’t take much notice of inconvenient information.

Thus, two academics from York University—Roger Bowles and Amanda Perry—authored a paper on legal aid costs published by the ministry last month. The authors came up with figures of comparative spend in a number of jurisdictions. Their work was predictably spurned.

The ministry announced Sir Ian’s review in a press release that compared high domestic expenditure in England and Wales with, per capita, “£5 in Canada, £8 in New Zealand and £9 in Australia”. The last figure is upheld by the researchers: they quote the cost as £9.11 in 2004.

However, New Zealand’s “spending per capita on legal aid related services” was $US 21.86, the equivalent of £13.18. Canada’s spend was €11.84 per head: £10.56. A cross check on the Statistics Canada website confirms that: “In 2007-2008, $670 million was spent on providing legal aid services in 10 provinces and territories. This represents over $20 for every person living in these jurisdictions.” That converts to £11.30.

Mystery

It remains a mystery as to where the ministry got its figures. The press release quotes a source for legal aid costs as the European Commission for the Efficiency of Justice study of European Justice Systems.

This, however, contains no information on non-European jurisdictions. Asked to explain, the ministry replied: “The difference in figures is due to variation in exchange rates” and that international comparisons were difficult. No such warnings in the press release. No reference to research that the Ministry was about to publish.

Not only is the Ministry of Justice careless with figures: it pays little heed to history. The review to end all reviews was to be that of Lord Carter of Coles. His headline recommendation was to proceed with best value tendering. However, his real input was to stop an imminent ill-considered experiment with criminal legal aid auctions in London.

It is a striking fact of recent legal history that the nearer anyone gets to implementing auctions for legal aid cases, the more cautious they are. There is a reason for that. Legal aid auctions will reduce competition, lower standards, are expensive to operate and, depending on how they operate, may not affect the major cost drivers in the system.

A fine mess

No wonder legal aid policy is in a mess. The Treasury is cheesed off with excuses and ministers are now coming up with an initiative a month to cut the budget. Implementation of ‘best value tendering’ has now shrewdly been put back until after the next election. So, now ministers are having another go: the arbitrary imposition of massive cuts in remuneration. This might hold down the budget but it is neither subtle nor coherent. The profession is legitimately up in arms.

A persistent problem is that the ministry is happier with administrative rather than substantive reform. Sir Ian’s review will be supplemented by another—on “the current finance and governance frameworks”. There is clearly trouble ahead for the Legal Services Commission.

The relationship between the commission and the ministry has never been easy. The commission holds all the information on how the system actually works: the ministry sees itself as the sole repository of good ideas of how it should work but lacks much factual understanding. The mismatch between the two approaches has been one of the reasons for policy failure.

Policy direction

There is no quick answer as to the forward direction of legal aid policy. The easy savings have been made. The government is, at least, rather creditably trying to save the social welfare spend. Any realistic way of holding down the budget requires significant pruning of criminal proceedings and much less use of imprisonment—matters which impact the Home Office and major government policy.

Criminal trials have to be shortened—that involves prosecution and defence. We may have to make greater use of salaried provision like law centres and public defenders. We can no longer muddle through. The last Tory Lord Chancellor was Lord Mackay.

He once said: “We have gone about as far as we can without radical change.” It looks like his party might be coming back to pick up the reins at just that point. Let’s hope that they don’t intend to appoint yet another external reviewer notable for their ignorance of the field.

Roger Smith is director of JUSTICE

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