Chair of the Bar: We risk failing to pass the most basic test of a civilised society

4 December 2017


Last month's Budget confirmed that the Ministry of Justice is to reduce spending from £6.6bn in 2017/18 to £6bn by 2019/20. Over the same period, spending on health, defence and education will all rise. This additional 9% cut on justice spending follows the 35% cut it suffered between 2010/11 and 2015/16. 

There is a limit to how much more money can be saved on departmental efficiency and so spending on prisons, the courts, and legal aid remains under severe pressure. Somehow the money has to be found.  Reducing the prison population, though we should undoubtedly do, seems beyond the statesmanship of current political leaders.  As for the courts, the Court Service is trying to repay a much-trumpeted modernisation loan from the Treasury of £1bn. Radical plans for making savings are proving contentious, in particular those that are aimed at reducing the need for a 'traditional' court room by suggesting that justice can equally as well be delivered in a virtual space or online. Many question if this will not alter the quality of justice. Few contend that there has been any real research as to the consequences. Similarly, plans to sit courts in early and late shifts are proving very unpopular.  

Where else can savings be made? Judges' salaries and pensions are worth much less than they used to be, such that the morale of the judiciary is at an all-time low. It is unlikely that the Ministry will consider it wise to try to make further saving there. Indeed, if something is not done to reverse the trend, that which we have for so long taken for granted - the quality of our judiciary - may soon be a legitimate matter for debate. 

So it is that the reduction on legal aid spend looks set to continue. The long-overdue review of the effect of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the legislation that removed the scope of legal aid for so many, now seems unlikely to reverse spending policy in any meaningful way.  

Almost by definition, the withdrawal of an entitlement to free legal advice and representation from those who cannot afford it, is the withdrawal of help from those whose personal lives are in crisis. Why does our society tolerate this deliberate deprivation of a free service from those in need in a way that would not be tolerated if it were health or education that faced a funding crisis of the same proportions? By comparison to the spending of these departments, the amount of money 'saved' on legal aid reduction is pitifully small. 

Over recent years the Ministry has advanced alternative lines to try to rebut the suggestion that such cuts are indefensible. It used to make comparisons with the spending on legal aid by our European counterparts, until it was conclusively demonstrated that such comparisons were misleading. Now, somewhat bizarrely, comparison is made with the cost of discharging the rest of the Ministry's responsibilities - the sub textual message seems to be,'Don't blame us'or'What would you rather do without?'. Of course, in one sense it is not the Ministry's fault. One might argue that successive Lord Chancellors were simply not up to the task of defending their budgetary corner in the annual fight with the Treasury, but that would be to ignore the consequence of the loss of stature that followed the demotion of the status of Lord Chancellor to a junior minster, by virtue of the Constitution Reform Act of 2005.  

However we got here, the fact is that in the last 10 years the reduction of spending on legal aid has been dramatic. In 2006 it was £2.4bn. By 2016, the sum had contracted to £1.6bn.  This last budget does not herald a change. The political calculation has presumably been made that justice can take another hit. 

Together with many other lawyers, I have been trying to draw attention to the consequences of undervaluing justice for several years now. If any news stories are generated by the noise we try to make, they are usually accompanied by a photograph of barristers in wigs and gowns standing outside a court in solemn but self-conscious pose. It is not difficult to see why journalists use this image. The image of the messenger is more striking than the familiar but depressing alternative picture of the victims; the homeless, the unemployed, the dispossessed, or more succinctly, those who have otherwise fallen from grace and are shunned by society.

The fall has often been triggered by a moment of crisis for each individual; eviction perhaps, or the break-up of family, or some employment dispute. At such a moment, free legal advice and representation has the capacity to check the otherwise inevitable downward spiral in fortune by seeing off a bullying landlord, or a loan shark, or an adverse outcome in family proceedings. Often a lawyer can salvage something for such a client and so prevent an avoidable injustice.

At the very least some basic advice and representation which articulates the case for an otherwise voiceless citizen, brings some attention and so some engagement with those who otherwise feel beyond the scope, not merely of legal aid, but of the rule of law. If it's only money that matters, there is plenty of research which shows that a pound spent on legal aid will save several pounds spent on the welfare needs of those who spiral dramatically downwards, consequent upon the initial crisis.  

Like other leaders of my profession, I have wanted to try to bring attention to these issues, to awaken society to the real cost of the loss of legal aid, and so to start to turn the tide. The advice from the pragmatists is to be focussed and selective, if you want to make an impact. So this year we have been focussing on some of the most vulnerable. It is not a popular cause and so remedying the problem requires us to call upon some basic tenets of the rule of law.

The Bar Council is this year pointing to the plight of immigrants who, without sufficient safeguards, are wrongly detained by the Home Office in immigration removal centres. For obvious reasons, protecting immigrants is not high on the nation's political agenda. The UK has one of the largest networks of immigration detention facilities in Europe. So it is that we have reached the stage where in the course of a year we lock up about 30,000 immigrants. At any one time there are about 3-4,000 such immigrants held by us, against their will, in custody, and unlike in any other European country there is no time limit on their detention. The recent Panorama program depicted the conditions in which many are held.  

There is considerable evidence that the decision to detain, or to keep in detention a large proportion of these immigrants, is badly flawed. There is also a growing body of cases decided by the courts which show that the Home Office on occasion treats the courts with behaviour bordering on contempt. Cuts to legal aid have reduced the scrutiny and accountability of such behaviour. Without sufficient means to scrutinise these decisions, and without those who champion the rule of law being prepared to react, we are reaching a position whereby we risk failing to pass the most basic test of a civilised society -  how we treat the most vulnerable amongst us.

Last week, at an event in the Temple Church, we published research commissioned by the Bar Council from Dr Anna Lindley of SOAS (University of London) entitled 'Injustice in Immigration Detention'. I'd encourage anyone with an interest in this issue to read it. 

Andrew Langdon QC, Chair of the Bar

(a shorter version of this article appeared in The Times newspaper on 30 November 2017)