Legal Aid cuts challenge democratic notion of justice

New research highlights the impact of Government cuts on lawyers entering criminal practice

Last month, the Government reached a significant agreement with the Law Society; as part of a deal to avoid lowest-bidder-wins tendering for contracts, legally aided criminal defence lawyers will face a pay cut of 17.5 per cent. Estimates suggest the cuts may reduce the 1,600 criminal legal aid firms to a rump of just 300.

Successive governments have promoted the consolidation of small firms into a core of more efficient businesses to better serve the public, but the reality is that such a decline will create advice deserts. Making a mockery of the notion of access to justice, there will be whole areas cut off from legal representation.

Discussing these cuts while teaching undergraduate law students last week, I was saddened to note that, though most of them wanted to go into legal practice, not one was considering entering criminal defence. They all found criminal work interesting and recognised its social value but were adamant that it could not be a serious option for them as the money was just not there. Even in the present circumstances, the students found pay rates inadequate; come the cuts, that situation will be heightened.

That aspiring lawyers’ perceptions of criminal legal aid is that it is insufficiently remunerative means that there may not be enough of them entering to sustain demand. That demand is unlikely to diminish, as politicians singularly fail to note that the ever-spiralling legal aid budget is largely due to their crime enforcement policies.

Rather than simply having fewer criminal defence lawyers, another problem arises as those in service will likely be of a significantly lower quality than desirable. In some ways, having access to such lawyers may be little better than self-representation. Those lawyers who are not deemed competent enough to attain commercial contracts may trickle down and find themselves in crime as they have no other alternative. This was certainly the only way my students could see themselves entering. So, rather than the essential public service of criminal defence attracting the brightest and best, it could become a dumping ground for the detritus, those no-one else wants.

Aside from quantity and quality, the crucial element that must be understood is that reducing funding changes the lawyer’s whole approach to practice. Cost-cutting reshapes the form of advocacy. It will increase pressures to process clients through, what I have labelled, the ‘sausage factory’ approach, turning criminal justice into an assembly-line production process, churning out cases.

This is what I have found in my research. Such lawyers feel compelled to offer a knowingly substandard service to clients. Though the lawyers claim a social agenda to stand up for the vulnerable and dispossessed, they are increasingly aware that their practice is not achieving this. They are not active and adversarial but passive and reactionary. For these lawyers, criminal defence has become a numbers game. The humanity of individual clients is lost as they become names on a list that need to be worked through as quickly as possible.

This trend can only increase if and when these cuts come into force; most evocatively, lawyers will be given financial encouragement to persuade clients to plead guilty early as they will lose money if cases go to trial.

The cuts have the potential to undermine the criminal defence professions as we know it and, as such, challenge the notion of justice that underlines the democratic state. Just to save some money.

Daniel Newman, research assistant (Sustainable Places Research Institute), Cardiff University. Newman is the author of Legal Aid Lawyers and the Quest for Justice