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The following is my response to  the government's request for responses to their consultation document on 'Transforming Legal Aid'. I disagree with their proposals for various reasons. In fact, I disagree with the government's austerity programme in its entirety. It is a universal principle that justice should not be for sale and I am worried that the government's proposals move us closer to a situation in which only the rich receive proper, unbiased, professional legal representation. The consultation documents can be found here: https://consult.justice.gov.uk/digital-communications/transforming-legal-aid


Justice is not something that is bought and sold. If it exists it 'delivers value for money' because it is inherently more valuable than money. It does not, therefore, need credibility with the law abiding taxpayer who feels its benefits only indirectly. Of course it should endeavour not to waste money, but the process should be one of looking for waste and making reforms, rather than arbitrarily deciding that less money must be spent and insisting on making cuts until the target reduction is met.

Other than resolving the underlying socio-economic reasons for the existence of the justice system I do not have any particular suggestions as to how to make justice cheaper, nor do I have much to say about whether it is better to make cuts to the justice budget rather than say, health, or education. I simply believe that these areas are so important that we must find a way to pay what it takes. If that means higher taxes so that the rich go without their yachts and the middle class without their skiing holidays then so be it. But this is not a response to the government's economic policy, it is a response to their justice proposals, which are in my view wholly unjust.

Note: many of the criticisms I raise below may be answered by saying that similar defects are tolerated elsewhere in the justice system. This is irrelevant. The fact a defect exists in one place is not a reason to introduce it elsewhere.

Answers to Questions

  1. No, due to concerns raised at 1, 2, and 3 below

  2. No, due to 1, 2, and 3 below

  3. No, due to not agreeing with proposal

  4. No, due to 1, 2, 3 and 4, below

  5. No, due to 1, 2, 3 and 5, below

  6. No, due to 1, 2, 3 and 5, below

I am not qualified to comment on specific proposals regarding remuneration and fees, which are the subject of the remaing questions, except in so far as to note that the greater the disparities between what is available on legal and and what is available privately, the greater the disparities in the justice available to rich and poor – due to 1, below.

Main Concerns

1: Implications of the Continued Availability of Private Advice

Having read the consultation, a theme emerges that by reducing access to legal aid, people will be encouraged to seek earlier or other means of resolving cases. For example, by forcing prisoners to use the Internal Prison Requests and Complaints System. No-where in this consultation is it suggested that individuals who do have the means to pay for private representation should be restricted from doing so except where the case merits it.

This permission suggests that the government does not believe that the defendants receiving advice and representation at the level available privately is unjust. Since the act of paying for legal assistance has no effect on whether that assistance is in the cause of justice, it is unclear why the government feels it is right to restrict access to those who can afford it.

The proposals' consistent recommendations of blanket reductions or complete removal of legal aid will surely effect those cases that do require professional assistance as much as those that do not. People do not magically become rich simply because their problem requires money to solve.

2: The Suitability of Alternative Avenues of Pursuit

The proposal makes much of the alternative means of approaching and resolving disputes. Whilst it may be true that disputes that would be suited to ADR or informal procedures do not always make use of them, the proposal does not adequately explain what should happen when they are not appropriate. For example, a prisoner who finds that their complaint has not been properly dealt with by the internal prison requests and complaint system, pursues it through the Ombudsman, Monitoring Board and Parliamentary Commissioner and has their complaints upheld, still may find that no action is taken and yet have no way of resolving their case.

It might be argued that these systems may or will be improved and that will address my concerns. If this is the case then there is no need to reduce access to legal aid since the improvements in the existing systems will reduce its uptake anyway.

3: The Difficulties and Unfairness of Paying Privately for Justice

Whilst I have some sympathy for the idea that people whose household disposable income is more than £37,000 should have to pay for their own defence if found guilty, legal process must not become a part of the punishment of defendants. It is highly questionable whether the wealthy should be subject to an additional sanction for their crimes, whether or not it is characterised as such. This question does not appear to be addressed in the consultation paper. There are, however, two further points to consider.

Firstly, when the payments would be made. A scheme in which they repay the cost of their defence if convicted is unlikely to be workable since a trial on indictment is highly likely to result in imprisonment on conviction and a subsequent truncating of their income. If instead they are to be made during the trial, this could have a dramatic impact on a potentially innocent defendant's lifestyle, potentially over a lengthy period. It may well be that a person who has £37,000 per year to spare lives a lifestyle that is considerably more comfortable than the average. However, I am not convinced that it is just to deprive them of it for any duration of time, particularly given the stresses they will already be under.

Secondly, when a defendant is acquitted, they will only be reimbursed at the legal aid rates. This raises the possibility of people losing their money through no fault of their own. If the government were to ensure that there is always competent representation available at the legal aid rates, then this might be acceptable, subject to a resolution of the first issue raised above. However, it seems doubtful, given the hurry with which a defendant must secure representation and the inherent difficulties in doing so if held on remand, that such assurances could be given.

Finally, the requirement that defendants satisfy a means test will necessarily require an intrusion into affairs that would ordinarily be private, and require them to produce documentation that may not always be readily available. Although poor record keeping should not be encouraged, it is not in itself criminal and should certainly not affect an individual's access to justice.

4: The Irrelevance of Residency to Justice

The fact that a person is not resident in the UK does not mean they are not entitled to justice; if a civil case arises, justice requires that it be dealt with. The fact that they may not have made a contribution to the funds that pay for legal aid is not relevant unless there is an alternative means for the person to achieve justice. The proposal does not suggest what a person who requires justice in the UK should do if they cannot afford to bring the case themselves.

5: Conflicts of Interest in Delegating Judicial Responsibility

The intention of the proposals regarding judicial review appears to be to discourage lawyers from applying for permission to proceed with judicial review cases where they believe the permission will not be granted. It accomplishes this by transferring the risk of proceeding from the state to the lawyer. This effectively requires the lawyer to make a definitive judicial determination as to the merits of the case. This causes two problems:

Firstly, it creates a clear conflict of interest: It is in a client's interests to continue with a case that has, for example, a 30% chance of success, but it is certainly not in the lawyer's interests. Of course, a lawyer should never place their own interests above their client's and so the effect of this proposal would either be to encourage lawyers to behave unethically, or alternatively to penalise them for acting in an ethical way.

Secondly, it is questionable whether it is the job of a lawyer, by which I mean a barrister or solicitor, to make a final determination as to whether a case should proceed. They should of course advise a client as to the prospects of success, but it should not be up to them whether or not the case proceeds. There are countless examples of cases that appeared unlikely at first proceeding successfully. It would be particularly concerning if cases did not proceed because they turned on a complex or controversial point of law. This could potentially deprive the legal system of judicial insight and the development of new case law.

This issue currently arises in all civil legal aid cases where the prospect of success is assessed beforehand. If implemented, the proposal to remove the Borderline category would worsen an existing problem.


It is anticipated that a rebuttal to this response would suggest that the author appears to believe that the state has infinite resources with which to deliver perfect justice. I do not. I acknowledge that true justice is extremely expensive and the combined resources of the world are insufficient to deliver it in each and every case.

I seek to highlight the fact that if we do need to cut the legal aid budget, it will necessarily lead to the injustices outlined above, and in particular mean that those who can afford private representation will be considerably more likely to receive justice than those who do not. This should be openly acknowledged by the government and ultimately consideration should be given to more wholesale reforms of the justice system.

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