Today our new Legal Services Act 2011 comes into force, just as we are digesting Lady Hale's Sir Henry Hodge Memorial Lecture, "Equal Access to Justice in the Big Society". There is thoughtful comment on this lecture at UKSCblog on 30 June 2011 by Anita Davies.
Our legal aid system is said to cost too much, and the government seeks to reduce what it calls a "$402 million dollar gap in the legal aid budget".
Of course this "gap" is the difference between what provision of legal aid has actually cost and what the government would like it to cost. It is, if you like, a budgeting aspiration. If we were a wealthier country, the cost of legal aid would be of no concern. I state that truism to emphasise that the government's concern is fiscal.
I am just focusing on the money here because it is singled out as a government goal. Other goals have been addressed in the new legislation, and these concern the quality of legal representation. There is nothing wrong with that. One of the ways by which the government intends to improve the quality of legal representation is by increasing the quantity of criminal work handled by officers of the Public Defence Service. Again, I see nothing wrong with that. In fact I think it is a miracle that someone persuaded the previous government that public money should be spent on training lawyers.
One of the sources of legal aid costs in criminal cases is, as Lady Hale points out, the large amount of work that is required of lawyers at the early stages of even cases that are not particularly serious. Case management and its associated workloads have not proven to have saved money.
On the other hand (this is me again, not Lady Hale) there seems to be no shortage of lawyers who are willing to do legal aid work. The obvious cost-saving strategy would be to decrease legal aid rates of pay. This would deter some lawyers from any involvement with legal aid, but new lawyers would step in to fill this "gap". They would, thanks to the quality of representation safeguards, be fit for the job. Theoretically anyway.
That would satisfy people who think lawyers earn too much money. Perceptions of lawyers' pay are probably exaggerated by the publicity given to some extreme examples. But even those lawyers who have received large legal aid remuneration have worked very hard for it. Against the median pay received by legal aid lawyers, once outliers are ignored, one would have to weigh the time spent, the stress of the work, the office overheads, and the risks of complaints of negligence made by disaffected former clients, before deciding whether lawyers are paid too much.
The real problem may be that the government has an unrealistic expectation of how small the budget for legal aid can be.
