Shine A Light

The attack on British justice: who is on the demolition squad?

A criminal barrister makes a shocking discovery about the Ministry of Justice mandarins who are wrecking Legal Aid.

Jon Mack
21 August 2013

Lately I asked the Ministry of Justice how many staff were employed in the Legal Aid Policy team that is working to radically alter the landscape of publically-funded criminal justice in England and Wales. And how many of those staff were legally qualified?

The answer came back: only one of the Ministry of Justice’s 35-strong Legal Aid Policy team is legally qualified.

In response to my Freedom of Information Act request, the Ministry of Justice replied:

"There are 35 staff employed in the Legal Aid Policy team. This breaks down as follows: 1 Deputy Director, 1 PA to Deputy Director, 7 x Band As, 11 x Band Bs, 12 x Band Cs, 2 x Band Ds and 1 x Band E." (By way of explanation, Band As are essentially managerial staff, also known as Civil Service Grades 6 / 7.)

It may raise eyebrows at the criminal bar and in high street firms of solicitors that no lawyers have been seconded to the team. The appointment of a Deputy Director to head the team may signal that the ministry is determined to deliver change and cost savings. In July, I pointed out the peculiar manner in which the Ministry of Justice makes policy.

‘Wholly ignorant of the law’

Michael Turner QC, Chairman of the Criminal Bar Association, said,

"The Ministry of Justice mirrors the ignorance and arrogance of many other government departments who believe that they know best. You will see that the MOJ says that all of its untrained staff are in close contact with the lawyers within the MOJ. Those lawyers presumably know nothing about Legal Aid and are employed to advise on Government contracts."

The Lord Chancellor continues to refuse to meet the Chair of the Criminal Bar Association. The ministry said, "MoJ officials have met awide range of stakeholders from the Law Society, Bar Council and others to discuss views on price competitive tendering in criminal legal aid and to explore other ideas they may have to help the Government reduce expenditure in legal aid."

Does it matter?

The MoJ is currently committed to ‘transforming’ legal aid provision in England and Wales: this involves cutting fees, and controversial plans to introduce price competitive tendering to the criminal legal services market. The Lord Chancellor wrote to parliament in July, saying: "My twin objectives [...] were to reduce the cost of legal aid in the context of the financial pressures we face while also ensuring a sustainable market, that delivers comprehensive coverage, a quality service and improved value for money." (HC 91 (2012-13)) If you consider that statement in any detail, it doesn’t really say much at all.

Barristers and solicitors have been unconvinced by the proposals, and protested against the proposed changes, citing many examples of clients who would have been wrongly convicted, if it wasn’t for timely legal advice – a petition against the proposals garnered 103,000 signatures. Lord McNally, Minister of State for Justice, gamely exposed the government’s top-level confusion, bumbling through a Bar Council-organised Legal Aid Question Time in June. Further questions as to how the MoJ’s plans fit with Cabinet Office policy were raised last week by the Law Society.

Setting the clock back

Retired Lord Justice of Appeal, Sir Henry Brooke CMG told the Law Gazette, "I spent my lifetime trying to make access to justice for poor people more straightforward. My generation achieved quite a lot, but these proposals, coupled with [the Legal Aid, Sentencing and Punishment of Offenders Act] are setting the clock back 50 years." (If you want to know just how extraordinarily busy Sir Henry has been during his career, take a look at his Valedictory Address [2006] EWCA Civ B1).

Cutting to the chase, the senior judges wrote: 

"Some of the proposed changes are likely to transfer rather than save costs. It cannot be emphasised too strongly that good advocacy reduces cost […] Poor advocacy is wasteful of resources; cases are less well prepared and they occupy more court time and take longer to come to a conclusion, while simultaneously increasing the risk of mistakes and miscarriages of justice. Many young and talented lawyers are no longer choosing to practise in crime. Some who feel trapped in this area of practice may continue because they have no option." 

So there we are: a reduction in quality with no concomitant reduction in cost. An absurd aim.

It matters

It would be impossible to imagine the government changing the way of working for GPs without consulting the Royal College of General Practitioners. It would be inconceivable that the policy team would not have medically trained staff seconded to it, or working with it in an advisory capacity. But it seem that is exactly what is happening in the Legal Aid Policy Team. Samuel Johnson described remarriage as ‘the triumph of hope over experience.’ The MoJ hasn’t had many triumphs recently, but it seems that its belief in its own capability is triumphing over the experience of a great many practitioners willing to provide advice free of charge.


This article first appeared on Jon Mack's blog.


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