Speech

Lord McNally speech: implementing the new framework for legal aid

Implementing the new framework for legal aid - funding, scope, and remuneration.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord McNally

When this Government came into power in May 2010 [Party political content removed], we faced an economic crisis which demanded immediate cuts in public expenditure. The Spending Review which followed ended up with the Ministry of Justice committed to cutting some 23% of its £10 billion budget.

So the debate about the size and scope of legal aid was already underway when we came into office in 2010; but was given added focus and urgency by the scale of the economic crisis we faced and the urgent need to cut public expenditure.

The first stage of that process was the Legal Aid, Sentencing and Punishment of Offenders Act, which came into force at the beginning of this month. Then on the ninth of April we launched our consultation on competition in the sphere of criminal legal aid.

I will be covering both these major reforms in the course of my speech today.

But I also want to step back and give a more general overview of what the system looks like now, and what I think a future, efficient model for legal aid looks like, in the context of access to justice in general.

The legal aid system we inherited was £2 billion a year, one of the most expensive in the world.

The steady rise in spend we saw from the eighties – more than a doubling in real terms – represented a system that had grown to become something it was never intended to be.

It simply wasn’t sustainable. The Government was spending money it didn’t have.

We can’t escape the fact that legal aid is taxpayers’ money. It’s not free. The pot doesn’t go on forever.

We need to get the best value from every penny spent.

That’s why we’ve made progress already in delivering a more efficient, targeted system.

The reforms to civil and criminal legal aid that we’ve already brought in – cuts in fees and changes to the scope of the regime – will bring about estimated savings of £320 million every year by the year 2014/2015.

The LASPO reforms implemented this month are estimated to save £180 million per annum alone, by targeting funding at those who have the greatest need: those whose life or liberty is at stake, where people are at risk of harm, or where domestic violence is involved.

Yet on the criminal side, we’re still spending £1 billion every year. A significant proportion of this spending is swallowed up by a few very high cost cases.

The consultation launched by the Government a fortnight ago is looking at a number of different ways to bring this under control.

What we’re proposing are ways of getting the best deal for the taxpayer:

  • cutting the costs of the most expensive cases by a third
  • bringing in competition to improve efficiency and allow providers to determine the best price for their services
  • ensuring that those who can afford to pay for their legal costs aren’t routinely in receipt of public money

But we’re already going further to ensure that the taxpayer isn’t footing the legal aid bill for convicted criminals.

We’ve already announced plans to seize the cars of criminals to recover the cost of their legal aid. And soon we will be able to take into account frozen assets as part of the means test.

Finally, the new Legal Aid Agency opened for business on 1 April.

Just as we’re asking providers to show in future they are genuinely offering the best deal to litigants, my pledge to the profession is that the new Agency will be a beacon of efficiency.

It will ensure providers continue to get paid more quickly. The old paper forms will move online, offering the modern, efficient service we have come to expect in every other walk of life.

Taken together, these changes represent a significant and a radical package of reform.

But I believe they are common sense reforms. And reforms that will bring legal aid spend down to sustainable levels and restore public confidence in a system that had overreached itself.

What I want to do now is move the story on.

We know we’re looking at a trimmer, leaner legal aid budget than we’ve had in the past. But we need a proper debate now about precisely what sort of legal aid model we have in this country.

I know only too well the strength of feeling; I can understand why the professions feel bruised. But what I do want to try and achieve, maybe even during the course of this Parliament, is a cross-party and cross-sector consensus about precisely what we want our legal aid system to be.

Who it’s for; how it works; what it costs.

Because I do believe this is something we need to get right. I am incredibly proud of this country’s legal aid tradition.

And I certainly want to pay tribute to our legal profession which is – in my view – the best in the world.

The tough response we’ve faced from some of our critics – shows just how much access to justice is a cause worth fighting for.

And it’s a cause I will always champion.

But I cannot agree with those who would have it that access to justice means only one thing: access to a lawyer funded by the taxpayer. This simply isn’t the case.

Access to justice didn’t start in 1949. The age old rights to a fair trial, now backed up by the European Convention, were ingrained in our constitution long before then.

Yes, legal aid plays its part in access to justice – an important part – and I guarantee you it will continue to play its part in future. Legal aid is not going away.

But the ways in which people access justice in this country will continue to evolve, and our legal aid system will evolve with it.

The old paradigm that Dickens knew… two expensive legal teams battling it out in a courtroom …an ancient family dispute long since misremembered and misunderstood…this is not going to be the picture of justice the next generation recognises.

In many cases - employment or education disputes, for example - people don’t always need lawyers. And a lot of the time the courts should be a last resort, not the first.

These are the types of problem which can be resolved through tribunals or similar bodies, more inquisitorial systems which are designed precisely to be accessed by individuals who represent themselves.

Or they can be solved by mediation: that’s a route I want to see more cases go down where it’s possible.

Mediation can be quicker, cheaper and less stressful than protracted litigation. It also plays a big part in reducing conflict and helping the parties to communicate better with each other.

In that vein, I need to tackle the question of litigants in person.

Of course it won’t be advisable in all cases. I can appreciate the fears of those who worry it will clog up the system, raising costs.

But I don’t believe that is inevitable. Neither do I agree with those who suggest that representing yourself is some radical new concept. It is a fact of life and one that our justice system can - and should - take into account.

Already legal representation is the exception rather than the norm in the small claims courts.

And in the family courts, people often represent themselves. In around half of all private children cases at least one party does not have a lawyer with them.

Above all, we need to recognise that when we talk about litigants, we’re not talking about some homogenous group.

People involved in litigation are engaged in all sorts of different disputes, each with different needs and capabilities. And for many, representing themselves will, can and should be a matter of choice.

The wider justice system too can do more to ensure it is efficient and effective in delivering justice to people.

We know only too well about the long delays that can characterise the criminal justice system.

Cases like robbery take almost six months end-to-end. Even the shortest types of case – theft and handling of stolen goods – are taking on average nearly three months to get resolved.

There are a number of reasons why this is the case – including double, sometimes triple, listing of cases in the Magistrates’ Court, meaning over half don’t get heard on the day they’re listed.

Part of the solution to these problems must be managing trials better, and ensuring the readiness of all parties on the day.

So we have brought together practitioners across the Criminal Justice System to look at ways of preventing these delays, to improve the proportion of successful trials and to deliver justice quicker. Our plan for reforming the Criminal Justice System will be published shortly.

We’ve already seen a judicially-led drive to improve efficiency through the Early Guilty Plea and Stop Delaying Justice schemes. And 48 flexible court pilots are underway showing how we can make the best possible use of the estate to deliver justice quickly and ensure legal bills – taxpayer funded or otherwise – are kept under control.

Fourteen years into the Twenty-First Century, in all walks of life we’ve seen some industries innovate, and other industries struggle to keep pace.

Modernise and thrive, or stagnate and get left behind.

That is the brutal and inescapable reality that services aren’t immune from that.

Already a progressive and diverse range of services are springing up, recognising and matching with individuals differing needs, and helping them resolve their problems and navigate the system.

Some are Government funded, such as the “Sorting Out Separation” web application. Others are run by volunteers. And others are commercial endeavours run by entrepreneurs who realise the need to provide bite-sized support or fixed cost packages to suit the needs and the pockets of their clients.

The arrival of Co-op legal services into the family advice market is perhaps the most obvious example of new players seeking to change and innovate, but there are others.

I’ve seen fantastic examples of innovative firms leading the way, keeping their costs down by using technology – telephone services and Skype – to offer advice to clients. These sorts of initiative show that where there’s the will to innovate, a way can be found.

Legal aid spending in England and Wales is the equivalent to around 10% of the total UK legal services sector.

But it cannot be right that we have seen firms subsisting solely on public money. Where a business model relies solely on one source of revenue, of course it exposes itself to a level of risk when times start to change.

So my message to practitioners is a simple one: innovate, diversify and seize the opportunities that are there. Because the alternative – shutting your eyes and ears to the change that is happening to legal aid, to litigants’ requirements, and to the justice system – is no alternative at all.

Conclusion

This Government inherited a very difficult financial situation.

Our top priority remains tackling the deficit and ensuring we live within our means.

Legal aid is part of that story and we had no choice – indeed, we have no choice – but to

refocus it on those that need it the most… to take the pressure off hardworking taxpayers.

This Government is transforming the justice system…

…we’re transforming rehabilitation,

…transforming the experience of young offenders in custody,

…and transforming the criminal justice system so that victims are put first.

Our legal aid reforms are part of that transformation.

I know there will be resistance. I know there will be others with different views and those who are worried about their future, and the future of their clients.

And I know that – ultimately – we’re never going to agree on everything.

But we can continue a sensible and mature dialogue, which I hope today’s Forum will be about

The process of reform we’ve started along means inevitably that the legal profession is going to change.

But how it changes, what it offers in the future, and what access to justice looks like for the coming generations…these are things for us to work out together.

Published 23 April 2013