Since they were revealed, Chris Grayling’s legal aid reforms have been met with widespread criticism. Recently the Justice Secretary was forced to drop his plan to prevent those receiving legal aid from choosing their own solicitors: a state interference which Tory backbenchers argued was ‘un-Conservative’. However, many still have deep misgivings about Mr. Grayling’s other proposals. These criticisms share a common complaint: that little or no consideration has been given to possible ramifications for the justice system.
For example, there are concerns that by creating one fee for criminal trials, there will be a conflict between the financial benefits of a client pleading guilty and the client’s best interests. Another worry is that the proposed 75% reduction in legal aid firms would lead to the collapse of small firms which provide vital specialised legal advice. Some, such as Law Society chief executive Desmond Hudson, have argued that the £37,500 eligibility threshold would lead to an increased number of unrepresented defendants. In 1995, the Equal Opportunity Tribunal of New South Wales compared the length of trials where both parties were represented with those where only one side had representation, and discovered that trials where the claimant was unrepresented lasted twice as long from referral to completion.
As the Australian legal system is closely modelled on our own, it is likely that similar patterns would occur in the UK. The difference in trial length is in part due to the lack of legal training that lay people have. I recently witnessed a case of unfair dismissal at an employment tribunal with an unrepresented claimant. Proceedings were frequently halted when the claimant struggled to find evidence in a poorly organised set of notes, and the judge was repeatedly required to provide lengthy explanations of legal terminology and procedure. An influx of unrepresented defendants would likely lead to an increase in costs, not a reduction.
On the other hand, it cannot be ignored that there are cuts that need to be made to the Ministry of Justice’s budget. Fortunately, there are more effective ways of reducing costs by modernising procedure and increasing efficiency. Unfortunately, Mr Grayling appears to have overlooked these. In 2006, the National Audit Office reported that “£173 million was spent last year on trials and hearings in magistrates’ courts that did not go ahead as planned”. There are many reasons that trials are delayed or adjourned. During my time as a mini-pupil I saw trials delayed due to simple administrative errors, such as misplaced documents or failure to book interpreters. In making improvements to the process by which cases are prepared for trial, many of these administrative errors could be avoided.
In 2012, the National Audit Office published a report on local projects’ attempts to improve the Criminal Justice System. In Kent, a trial system was run which attempted to reduce the number of processes between charging a defendant and a trial at Crown Court, reducing the chance for administrative error and improving victim and witness care. Under the project, trial readiness increased from 45 per cent to 70 per cent: an additional 250 trials ready to proceed when they reach court. In Warwickshire, the Justice Centre was created to provide a “‘one-stop shop’ for services to victims, witnesses, suspects and the wider community”. By housing services such as Warwickshire Crown Prosecution Service and victim and witness support in the same building, the hope was to share resources and simplify the procedure for victims and witnesses. The results indicated the project would annually produce around £650,000 of non-cashable savings and around £800,000 of cashable savings, as well as improving effective trial rates and witness care.
Put simply, there are possible ways of reducing legal spending without damaging the legal system.
The legal aid proposals are currently undergoing review, with a debate in Westminster Hall and a published second consultation on the finalised proposals due in September. The reasons for success in the projects listed in the report above include “good strategic governance structure” and “establishing a sound understanding of the needs of service users before commissioning services”. Perhaps if Mr Grayling were to learn from other successful projects and be mindful of the long-term impact his reforms will have on those who require legal aid, he will be able to produce an efficient and fair system of which we can all be proud.