Last week saw the unprecedented events whereby criminal legal aid barristers and solicitors all but a few went on strike, as they walked out of court for a morning and refused to act in their cases. This was a momentous action, with great symbolic value – it was jarring in the extreme to see the images of bewigged, robed advocates demonstrating in the street with anti-establishment placards. As much as any reasoned argument, that extraordinary sight alone should be enough to signal that something is wrong in the operation of our criminal justice system.
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The walk out for justice was reported on favourably by serious newspapers of all stripes, there were a plethora of angry opinion pieces in defence of the lawyers online and this all was given due attention throughout the day on BBC and Sky news outlets. However, it seems significant to note that during that Friday’s edition of Any Questions on Radio 4, the subject of legal aid funding was not even raised.
The absence of discussion appears strange considering that, both, Justice Secretary, Chris Grayling, and his shadow, Sadiq Khan, were on the panel. The issue seemed to have been overtaken in public consciousness by a pair of other debates ensuing from the verdict of lawful killing brought by the jury in the Mark Duggan case and the furore that emerged on social security following the airing of Channel 4’s exploitative documentary Benefits Street.
In comparison with questions on whether the police can be trusted or to how far the demonization of the poor had gone, legal aid cuts had seemingly failed to gain traction. The reason for this may be due to the framing of the issue. It combines matters of criminal justice (as in Duggan) and the welfare state (the same as Benefits Street). As such, there is every reason to suppose that legal aid cuts should have been considered of the same order of merit, if not higher; however, coverage of the Ministry of Justice proposals has largely failed to articulate these links.
Focus on the cuts has been about lawyer wages and, in particular, the remuneration received by barristers. This was evident in the minority of negative coverage as evidenced in a publication such as the Daily Mail, which led with the headline: The most privileged picket line ever? Lady barrister clutching £1,100 Mulberry bag among thousands to walk out in protest at plans to slash legal aid budget. It was just as true, though, in positive coverage, as in the extensive commentary offered by the Guardian, which felt the need to justify championing the causes of barristers – whether they earned sixty-odd thousand or eighty-odd thousand pounds, explanations about the need to pay for office space and picking out that figures included VAT.
And though the walk out received prime coverage on BBC Breakfast News, this largely amounted to a debate between figures from the Ministry of Justice and the Bar as to whose calculations on average remuneration were correct. That lawyers were generally considered to be in the right is of little consequence because the ultimate effect is that, in public consciousness, this became a strike over wages.
That the cuts present a serious challenge to the basic principles of equality of arms that present the foundations to our criminal justice system was side-lined.
The debate surrounding Benefits Street should not have silenced discussion of legal aid cuts. Rather, it should have amplified the underlying issues: reduced practitioner remuneration is not important because it means that lawyers will be paid less in and of itself, it is about fundamental values surrounding the welfare state, what and who it should represent. Those who care about justice are not bringing attention to the proposals out of concern that lawyers may need to downsize their cars or just take the one foreign holiday next year, they do it because they understand that it is the clients of these lawyers who stand to lose out.
Whether or not one agrees with the fees paid to lawyers, and regardless of the overheads said these practitioners have to pay out of their remuneration package, the significant issue is that solicitors and barristers will be paid less. Regardless of their best intentions and firmly held beliefs in access to justice or dedication to clients, the service they provide will suffer as increasing amounts of attention need be paid to business-minded profitability over client-centred active defence.
Lawyers will feel the need to spend less time preparing client cases; chasing up witnesses and combing for evidence will be curtailed. Criminal defence will be pushed further towards the sausage factory approach, whereby clients are churned out quickly and efficiently in a standardised fashion.
Lawyers will not construe themselves able to do otherwise; especially due to the perverse incentives for early guilty pleas offered by the Ministry of Justice will induce them to do so.
Further, lawyers entering the profession in the future are ever more likely to be those not able enough to practice in more lucrative forms of law. Already, law student focus is extensively on appealing to large commercial firms – understandably, due to the high cost of gaining their qualifications. The significance of a 17.5% reduction in earnings to a branch of the profession that already has the reputation of being relatively poorly paid may be a final nail in the coffin of aspiration.
We need the best lawyers in criminal legal aid work because they hold in their hands the liberty of the poorest and most vulnerable members of our society. Those lawyers need to be confident that they are able to expend time and energy fighting for their clients and not have to practice with one eye on the clock and the other on the pay ledger. The walkout was not about funding lawyers, it was about supporting defendants and, at heart, this means maintaining the justice system that is the bedrock of our democracy. The debate around these cuts must not be allowed to lose sight of that principle. Lawyers and those who champion their cause must keep fighting to ensure that the media agenda focuses on those defendants who will lose out in these reforms.
Dr Newman is a cecturer in law at Cardiff School of Law and Politics and author of Legal Aid Lawyers and the Quest for Justice (Hart, 2013)