“Justice fault: repair needed”

Four years on from LASPO, the wheels of justice are in urgent need of repair, writes Andrew Langdon QC. No hyperbole: policy-makers are fixated on the technological revolution and the Reform Programme and do not want to talk about fixing legal aid

April is the fourth anniversary of the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a measure which removed legal aid from many sections of our community.

In 2013 we also suffered the last of a succession of cuts to legal aid rates in the Crown court which meant that in real terms the remuneration of advocates had been cut by 37% in the six years since 2007. Four years on, with no index-linked increases at any stage, the cuts are now deeper than 40%. No other sector of public funding has come close to suffering that sort of carnage.

While the legal professions try to focus the attention of government on the consequences of all this, it seems that rather than make the case to the Treasury for re-investment in legal aid, which was, after all, once trumpeted as the ‘fourth pillar’ of the welfare state, policy-makers focus instead on the delivery of new initiatives which will ‘transform’ the way we deliver justice. There is a certain amount of infectious excitement at what may be technologically possible.

Accordingly, in the current age, it becomes somewhat ‘retro’ to point to the continuing ravages of LASPO or cuts to the rates of the core work of those in both branches of the legal profession who are delivering an unsung service. The reality is that those at the core of delivery are struggling to keep the wheels of justice turning smoothly whilst working for less and less. Currently, no-one seems inclined to listen to that.

On the contrary, it is said that technology and flexibility will bring smart solutions for the delivery of justice at affordable prices. The Lord Chancellor, Her Majesty’s Courts and Tribunals Service and the senior judiciary, are inclined, for reasons which are entirely understandable, to accentuate the positive.

The view from the trenches is rather different. So is the mood. The proliferation of litigants in person and the disappointing lack of recognition of the value of skilled advocates who assist the court, are as disabling to the delivery of publicly funded justice as a flat tyre to a charabanc. Practitioners are losing patience. This is not hyperbole. Any responsible and knowledgeable commentator will tell you that the wheels are in urgent need of repair. We could, I suppose, ignore the noise and press on; on the other hand it may be prudent to think about what happens when the wheels finally come off a moving vehicle.

So those of us who can, try to draw attention to the problem. We suggest we need to change the wheels. Nothing too flash, just some sturdy and reliable Dunlops so that we can stay on the road. But the attention of policy-makers is increasingly elsewhere. They do not want to talk about legal aid. They want to talk about the technological revolution and the Reform Programme.

Digitisation, the Online Solutions Court, radical changes to the use of the court estate: these are headlines which suggest that the charabanc, far from grinding to a halt, is somehow capable of morphing like some latter-day Chitty Chitty Bang Bang into so many versatile pods on a technological superhighway. If there are any vehicles left, they may be virtual rather than real; certainly they will be much more versatile than the old charabanc. The lawyers must find some way of complementing all this if they choose to stay in the law, because the new transport system will be driver-less.

It remains to be seen whether this transformation will deliver justice to citizens in need. While the futurists seek to make manifest the vision, others attend as best they can to the delivery of those in need of justice now. Of course we must also do what we can to help shape the future. Barristers who know what actually happens in court and why going to court will always matter, routinely attend the HMCTS ‘Professional Engagement Groups’. Little by little, glimpses of the vision are revealed to us. Some of it is clever. Some of it is overdue. Some of it is, frankly, a bit half-baked.

The worry is that the very serious business of prosecuting and defending accused men and women, or acting for parents whose children are said to be better cared for by others, or giving expert professional human assistance to vulnerable people who are caught up in a crisis which requires the delicate but firm hand of fair justice; this core work which we do feels undervalued by government. The fact is that there is an irreducible core of what professional advocates need to deliver on public funds. Of course we not only move with technological advances, we welcome them. The Crown Court Digital Case System is an example of how we can work to deliver improvements in a digital age. But it hasn’t reduced our workload, nor our responsibility to victims, to our clients or to the court.

It would be a very great mistake to assume that there will always be enough skilled barristers prepared to work at ever-reducing rates of pay to meet the needs of those who cannot afford to pay privately. The junior Bar is shrinking in size.

Some may believe that this is how it must be; that those without the means must move into the lower tier of a two-tier system. But for the rest of us the fourth pillar of the welfare state, rather like the NHS, should operate on the basis that lack of means for those in need should not prevent access to the very best. Unlike the NHS, justice has not been ring-fenced when it comes to public expenditure. It is clear that the Treasury currently believes it need not be.

The wheels may come off if nothing is done to change the prevailing mind-set. We would like to move with the grain of change enabled by technology, and to help shape it in the public interest to capture the best of what is has to offer for the delivery of justice.

But first we need to fix the charabanc and it’s hard to change the wheels on a moving vehicle. Before we transform the way we do things in the future, let’s take a moment to fix the present.

Andrew Langdon QC

Andrew Langdon QC is Chairman of the Bar for 2017

Original article: https://www.counselmagazine.co.uk/articles/justice-fault-repair-needed