Don't put criminal law above civil

Vicki Chapman warns that by making criminal cases a priority in the legal aid budget, the Lord Chancellor will be playing a dangerous game. Vicki Chapman is the policy director at the Legal Action Group.

The Lord Chancellor recently revealed that funds for civil legal aid could be squeezed if there is a heavy demand on the criminal legal aid budget. The disclosure, made during the passage of the Access to Justice Bill, came as something of a surprise, both to peers and everyone else following the progress of the Bill.

It has been generally accepted, although not welcomed, that the civil legal aid budget would be capped. The criminal legal aid budget, on the other hand, would not. The White Paper Modernising Justice was clear: the Community Legal Service (CLS) fund (replacing civil and family legal aid) would operate under a controlled budget with finite resources, while the Criminal Defence Service (replacing criminal legal aid) would be separate, its budget not forming part of the CLS fund. "Separating the two schemes in this way reflects the fact that they are responsible for providing different types of service in very different types of case; and that each scheme has its own distinct objectives and priorities."

So it was something of a revelation to be told that not only must the civil budget be capped, but that it must also play second fiddle to the criminal budget. The Lord Chancellor told peers that the criminal budget must have higher priority than the civil because of the absolute nature of our international obligations. "The only money that is left for civil legal aid is what is left over out of that budget after the requirements of criminal legal aid have been met."

This is a dangerous road to go down. There is a risk that failure to protect civil legal aid will lead to criminal and family work squeezing out other civil work. This has been seen in other jurisdictions. Some Australian jurisdictions have suspended eligibility for civil legal aid in times of budgetary crisis. Capping of the legal aid budget in Ontario led to an 80 per cent decrease in civil certificates over three years. The former Lord Chancellor Lord Mackay recognised the danger, and proposed that there should be three separate budgets, for civil, family and crime.

The criminal budget is growing at a significantly faster rate than the civil. Over the last four years expenditure on crime has risen by 29.5 per cent, compared with 5.3 per cent for civil. This is likely to increase as a result of the implementation of the Human Rights Act, which will allow direct enforcement of European Convention rights in local courts and tribunals. There will inevitably be a rush of criminal cases raising questions on matters such as adverse inference drawn from silence, the use of evidence obtained by covert surveillance or entrapment, the validity of remands in custody and the extent and nature of advanced disclosure. Criminal cases will be followed by those about family matters, as solicitors probe the extent of the right to family life. With a capped budget, this new expenditure will squeeze other areas.

There is also a practical problem. If expenditure on criminal matters exceeds expectations, will the Lord Chancellor rule that certain types of civil action are no longer eligible for legal aid? Will civil work contracts be altered or terminated? Or will funds be held back at the centre in case there is a demand for more money for criminal work? Priorities for spending on civil legal aid should be discussed and planned in their own right, not dependent on the consequences of an unexpected, or unplanned for, increase in criminal expenditure.

The Government has consistently argued that it wants to refocus legal aid spending to prioritise social welfare law, to ensure that the disadvantaged and socially excluded can get help with the issues that affect their everyday life: this is to be at the heart of the new service. But unless the civil budget is protected from incursion because of increases in criminal expenditure, it is exactly those cases which the government sees as having high priority that are likely to suffer.