Cuts to legal aid have a direct impact on individual freedom
Legal Aid is not usually at the forefront of modern discussions about freedom. More often than not it is treated as a narrow technical issue discussed solely in relation to lawyers’ fees. Long before the media bashed the bankers for being greedy, it bashed the barristers, who frequently stood accused of using legal aid to line their pockets with public money. This has led to a general weariness about discussions on legal aid and a reluctance by the public to lend support to lawyers in making a positive case for its provision.
It was against this background that the government published its Comprehensive Spending Review last month. It revealed that the Ministry of Justice would cut £93 million from the Criminal Legal Aid budget by 2015. The minister for legal aid Jonathan Djanogly, who will be widely responsible for deciding how the savings are made, has not publicly divulged any specific plans as to how these savings will be achieved. However, those details that have made it into the public domain make it clear that the cuts to legal aid stand to have a direct impact on individual freedom.
In an interview with BBC Radio 4’s Law in Action earlier in the year, Djanogly hinted that many criminal law firms will no longer be able to practice as a result of the cuts in legal aid. Before the election New Labour planned to cut 75 percent of law firms practicing criminal aid, reducing the number of legal aid firms in England and Wales from 2,500 to around 400. When asked whether the Coalition government would carry these plans forward, Djanogly replied: ‘We will let the market decide’.
Cutting back on legal aid providers will have an impact outside of the “market”. On arriving at a police station, a defendant is given an unqualified choice as to who will represent them. If a defendant has ever been prosecuted before, they are likely to have developed a good working relationship with a small local firm. Often a defendant will have a long-standing relationship of trust with an individual lawyer that will have developed over many years. Legal aid guarantees that the decision as to who takes a case always falls to the defendant. This is an important right that should be defended.
Djanogly went further and said that the cuts may mean that defendants would have to forego their right to a face-to-face consultation with their solicitor at the police station altogether. He indicated that he did not think it was necessary in all cases for a solicitor to be present during a police interview and that sometimes a ‘telephone call or a video link would suffice’.
Of course a phone call can only do so much to ensure that the rights of the defendants are maintained at the police station. There may be occasions when a solicitor can perform their role effectively without attending in person, but the decision as to whether or not a lawyer needs to attend should be one for the lawyer and their client to make; not for the legal aid minister clutching the purse strings.
Restrictions on defendants’ rights in the name of cuts is dangerous and unnecessary. There are a number of alternative measures, which could give rise to deeper discussions about criminal justice reform. One of these suggestions put forward by The Bar Council, the representative body for barristers in England and Wales, has been to review those prisoners serving indeterminate sentences – sentences with no release date which are imposed where the offender is considered to pose a significant risk of serious harm to the public – to assess whether they need to remain in custody. This approach would force broader discussions about how we should treat those convicted of the most serious offences. We should also consider whether we want all of the 3,000 new criminal offences introduced by Labour during their incumbency to remain on the statute books. Cutting back on some of these offences would not only save money but could, more importantly, reinvigorate discussion about the role that we want criminal law to perform in society. These are the kind of discussions we should be having, instead of flippantly taking the axe to the rights of defendants.
The cuts present us with the opportunity to have a serious discussion about how the fundamental institutions of our society should be reorganised. Legal Aid is one such institution. If we are to have a real debate about how it should be maintained, we should recognise that changes to Legal Aid are not just about balancing the books: they have the potential to shape society’s attitude to individual freedom.
Throughout October and November, The Independent Online is partnering with the Battle of Ideas festival to present a series of guest blogs from festival speakers on the key questions of our time.
Luke Gittos is a Paralegal at Hughmans Solicitors and a member of the Battle of Ideas Committee. He is producing the Battle Satellite event Criminal cuts? The legal aid debate taking place at the Free Word Centre in Farringdon, London, on Wednesday 17 November.
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