Public defenders of the realm
23 April 1996
2 July 2013
17 June 2013
11 February 2013
22 February 2013
28 May 2013
It is not every day you see a professor of sociology try to persuade high street lawyers to man the barricades against officials of the Legal Aid Board, so I read the polemic by Christie Davies (The Lawyer 9 April) with real interest.
I, too, am fascinated to see the lengths the Conservatives go to to alienate their natural supporters - "doctors, dentists, teachers and lawyers".
A public defender-style service makes sense. If it costs as much as the Crown Prosecution Service we would in fact be saving money for the taxpayer. And why compare with the CPS? That business was nationalised by the Conservatives as a second class service in the first place. Is there a prosecution service anywhere else that is forced to surrender all its important cases and a disproportionate chunk of its budget to outside lawyers?
Better to compare with public defenders in other parts of the world. That is what Lord Widgery did as a High Court judge in 1966. He recognised there would be savings but he rejected the idea because it would deprive barristers of public money.
But the crisis of funding for public legal services is not limited to the UK. In 1955, New Zealand's Legal Services Board, having looked at public defenders in the US and Hong Kong, said the "organisational structure allows greater staff monitoring and control which can have positive impacts on fiscal management, quality control, equity and targeting. Because counsel are salaried the transaction costs of counsel assignment are reduced." The public defender option was rejected in favour of a purchase-oriented system (not unlike franchising) because defenders were considered more appropriate in jurisdictions with large conurbations, and - that old chestnut - "it is likely to be more acceptable to the legal profession".
Anyone outside the legal professions can easily draw a comparison with other public services. If education or the health service had been run solely through the private sector for the past 50 years, both would have collapsed long ago.
When it comes to essential services people prefer public provision - it is better value. Davies' reference to dentists is informative. Our teeth have so many fillings because dentists were rewarded on a piece rate basis for so long. Could our courts be clogged up for the same reason?
The Campaign for a National Legal Service (CNLS) recognises the gravy train has hit the buffers. Those sitting comfortably in the rear carriages may not know it yet, but at the sharp end practitioners are already scrambling out of the wreckage. The group wants a public defender service and a national network of law centres doing all publically-funded civil work - law centres represent better value than high street practice. Both would be accountable to a Legal Services Commission which would oversee, fund, and enforce a new statutory right to essential legal services.
Legal aid would go and so would the fraud which accompanies it, estimated at £6.4 million in 1991. If so-called bankrupt businessmen want lawyers to scour the law and medical books for unmeritorious defences, let their friends find the exorbitant fees. The architects of legal aid did not intend them to get public money.
CNLS wants all pageantry abolished. Wigs and QCs should go. There would be a much-needed levelling among lawyers. The sickness at the heart of UK justice is ultimately cultural. Anyone who fails to understand must read David Rose's penetrating insight into the collapse of criminal justice, In the Name of the Law. "Class," he says, "accounts for some of the system's most objectionable features."
It is too late for half measures. And it would be odious to patronise needy litigants with pro bono generosity from publicity hungry lawyers. Rearranging the subsidies to the justice industry provides a chance to make major savings for the taxpayer and - as spin offs - an assault on elitism and greater access to justice.
CNLS is holding an open meeting in committee room six of the House of Commons on 30 April at 7pm. Speakers include Tony Benn, Peter Kandler, Humphrey Forrest for the Law Centre Federation and CNLS secretary Ian Muir. Austin Mitchell is Labour MP for Great Grimsby.