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Jonathan Djanogly speaks in Cambridge Union debate

16th March 2015

Jonathan Djanogly’s speech delivered to the Cambridge Union in favour of the motion: ‘This House Supports the Cuts to Legal Aid’.

To no one will we sell, to no one deny or delay right or justice. Magna Carta cl 40, whose 800th Anniversary we are now celebrating. On the face of it, an absolute penetrating and timeless provision – but not timeless I would suggest in its application. Certainly when it was written it applied mainly to Barons and Knights – later to Freemen (about one seventh of the population), but not the Common man. It was cited in De Montfort’s 1258 Provisions of Oxford to support a Parliament and then out of context as a defence of habeas corpus before the pre Civil War 1628 Petition of Rights. And then of course the Americans used it as background to their own Constitution. In practice the purest of legal concepts has been adapted by the politics of the day.

Likewise, it would be wrong or at least unrealistic to consider legal aid to be unrelated to wider political objectives or government resources. Legal aid was established after WWII initially to assist family law and divorce, at a time when divorce was initiated by only a handful of people. In the 1960’s and 1970’s the scope of legal aid was expanded hugely – even though not everyone who qualified used it, as we were then a less litigious society.

By the time the Coalition government came to power in 2010, legal aid spending in England and Wales had run out of control. It covered areas and encouraged litigation where alternative and cheaper, quicker options were frequently available but were often being crowded out by legislation and lawyers who felt they knew best.

In money terms in 2010 we, that’s England and Wales, were spending £2.1bn a year on legal aid – half of it civil and half criminal. With the austerity measures of the new government we, the Coalition ministers in the MoJ, were required to cut our departmental spend of £9bn by one third. A tough ask in any business – let alone the state sector. Now we can argue to what extent the shambles the Labour Party left the country in 2010 deserved public sector cuts. We can also argue whether those cuts should have come out of say, health spending or further defence cuts rather than the MoJ. But given the reduction demands on the MoJ, legal aid had to be cut because prisons and legal aid are the two largest components of MoJ spending. This is the harsh reality of national financial mismanagement.

Having said that, we were fully aware that the legal aid system we inherited from Labour was in deep trouble, with 25% of criminal law firms having closed shop and rates being frozen for a decade. The last Labour government acknowledged that the system was unsustainable and prepared, but twice failed, to introduce contracts for criminal legal aid tendering. Having failed in the reforms not only did they go for the relatively easy option of cutting legal aid rates but they also went for the crafty route of having those rate cuts come in after the General Election.

Upon taking office we had the most generous legal aid system in the world; but even after the spend and scope reductions we still have the most generous system in the world. To give you a comparator, France and Germany spend about £5 per head on legal aid, whilst we were spending £38 per head.

Even so, if the Coalition had simply come into government and done the same as Labour – that is cut legal aid going to lawyers but not reform the legal aid system, I would have been on a weaker stand this evening. But, I think the Coalition deserves your support because we didn’t just cut rates – we responsibly looked to reform the whole system from top to bottom, including our very popular move which saved millions, by scrapping the Legal Services Commission. This was the body that ran legal aid extremely inefficiently, mispaying lawyers and delaying their payments. Likewise, steps have been taken to remove the higher payments made to barristers than solicitors – clearly a historic unfairness. And in civil legal aid we not only reconsidered what areas should be in the legal aid net – but we also cut access to higher earners.

So with civil legal aid we looked carefully at the types of advice that should qualify. As well as criminal cases, legal aid has been retained for mental health matters, asylum, debt and housing where someone’s home is at risk. All of those are relevant to family welfare as is public family law, when children can be removed from parents and it is also still retained in private family law where domestic violence is a feature.

However we can not afford to fund generally long and intractable disputes in the family courts. Indeed we know that mediation can lead to quicker and cheaper results that are consensual and less acrimoniously agreed than those imposed by the courts. This is especially important where children are involved. Legal aid and litigation is simply not always the answer.

Likewise in many civil areas, such as debt, benefits, non asylum immigration and consumer, it was right to remove legal aid because the Not for Profit advisory services, like the CAB, are the right people to deal with what is often a question of help with process as much as anything else. There was of course huge duplication of service provision in many areas, like debt advice, and work has gone into streamlining this.

So the point that I make is that the legal aid reforms can be justified not just in terms of the overall need to cut public expenditure – but as part of a wider long needed reform of the legal aid and justice system – which is certainly not yet completed.

I do not represent a legal representative body, although I am a member of the Law Society and likewise I do not represent government – although I speak with the experience of a former legal aid minister. And in my personal opinion we need to be more ambitious when it comes to restructuring our criminal legal aid system.

Again the Labour Party’s route of simply cutting rates may be part of the package but it is not adequate; and here I would like to see a bolder approach. The two fee structure where, on more complicated cases, a solicitor employs a barrister and both get paid separately is a hangover from times past, not used by any other country, it often works against the client’s interest and is becoming increasingly irrelevant in a legal world of Alternative Business Structures, economies of scale and demands for efficiency.

One fee based on competitive tendering is where we should end up. Yes there would be less criminal practice firms – but the inefficient subsidised cottage industry that we have at the moment is on the way out and we shouldn’t prolong its demise. In effect there needs to be many less criminal law firms earning a larger slice of the smaller legal aid pie. In that way we shall build a resilient and efficient criminal legal aid sector fit for modern times.

The issues here, go very much deeper than cuts to legal aid rates – they go to cutting the scope of legal aid, cutting its administration costs and how and to whom it is delivered. To that end, I would argue that the Coalition legal aid government cuts taken in the round are not only justified – but that they would be more or less replicated by any other serious party of government.

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