Choice is key legal aid benefit
13 May 1996
16 August 2004
23 April 1996
5 January 2009
15 November 1999
4 October 2004
I like Austin Mitchell and respect his views (The Lawyer 23 April). In 1993, he chaired a Fabian Society panel which made me that year's Webb Memorial Essayist. Assuming that he has, therefore, some regard for my thoughts, I ask him to consider whether he is right to prescribe a National Legal Service as a panacea for the ills of UK justice.
Mitchell's basic assumption is that "a public defender service makes sense". Maybe, but no attempt is made at justifying this assertion except through vague reference to legal aid fraud, ancient and oblique comparisons with foreign countries, and unsupported claims to "better value" from a public defender scheme.
The Crown Prosecution Service is rightly held up as a second-class and underfunded organisation with neither the means nor morale to do its job. Would a public defender scheme be different? Of course not. It would introduce new, unnecessary layers of bureaucracy, be starved of cash and, perhaps worst, sap enthusiasm and commitment from dedicated defence lawyers who sympathise with the current plight of their CPS colleagues.
The only reason a Tory government would introduce such a scheme would be for quick cash savings, inevitably affecting quality representation. The Labour Party has its own justice agenda and Mitchell's proposals do not fit easily with it.
Neither is there widespread support for the idea. So far as I know, only the CNLS itself, along with the Law Centres Federation (not without some interest in the matter) have, together with a few individual voices, expressed support for something like Mitchell's scheme. What of representative professional bodies like LAG or LAPG? Where are the independent voices calling for the nationalisation of defence practice? Labour lawyers, representing Mitchell's legal comrades, show no obvious enthusiasm for his proposals.
And where on earth is the "gravy train" Austin describes running into the buffers? Between 1989 and 1994, the share of the total legal aid bill spent on crime fell from 42.6 to 28.5% per cent while the civil element rose from 50.8 to 67.8 per cent. If Mitchell seriously believes his prescription would cure the justice system, he should promote a Public Divorce Service or National Personal Injury Scheme.
Moreover, Mitchell should ask a few criminal legal aid practitioners just how much "gravy" they get. I am not underpaid for the work I do, but I earn little more than a teacher or police officer of similar age and experience. I do my job because I love it. If I wanted to use my professional skills on some publicly-funded gravy train, I would join a City firm specialising in share flotations of national assets.
It is a shame that Mitchell has also fallen for trash-media hype about the legally-aided rich. Nevertheless, he should not invoke the "architects of legal aid" in so doing.
When Lord Rushcliffe implemented the scheme in 1950, he argued it should not only cover those "normally classed as poor" but also people of "small and moderate means." Then, legal aid covered 80 per cent of the population on income grounds. Now it covers about a third. All legal aid lawyers can relate horror stories of poverty trap denials of justice due to financial ineligibility. It is often forgotten that the Atlee government saw access to justice as fundamental to the welfare state in exactly the same way as education and healthcare. I am genuinely sorry and not a little concerned if senior Labour MPs of today do not concur.
The core of Mitchell's argument comes mid-way through his article: "[in] essential services people prefer public provision - it is better value". People also prefer choice. In 1992, while awaiting the conclusions of the Royal Commission on Criminal Justice, Anthony Edwards wrote: "Independence is the essential key to criminal defence work. Clients must feel confident in their solicitors. Only then will they listen to advice [and] disclose the issues that may prove essential in their defence." (Legal Action November 1992).
A faceless, monolithic public defender scheme would remove choice and confidence, the same state apparatus prosecuting a defendant presenting him or her with a no-choice deal in defence. I want clients to instruct me freely because they expect high-quality representation, not because I am their only option.
Competent private legal aid practices can and should compete with each other, and a network of properly-funded law centres, that offer quality and breadth of choice would bring security to vulnerable citizens needing legal advice, and contribute to a humane society.
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