At crisis point

So there is to be yet another review of legal aid. This time to be undertaken by Sir Ian Magee, who has been appointed not for his knowledge of the legal aid system but for his skills as a civil servant.

It only seems a short while ago that Lord Carter was doing something a little similar. Nevertheless, his final report seems to have been filed in the cabinet under the desk and one wonders quite what will be achieved by Mr Magee.

The banner headline over the review seems to betray the fact that what he is going to suggest at the end of his review is a split between the criminal budget and the civil law budget. This begs the question whether large sums of public money should be spent on Mr Magee (and no doubt quite a large team of researchers, helpers, hangers-on and others) when the conclusions that are likely to be reached are already in the public domain.

The legal aid budget lest we forget is horribly modest. It is just over £2bn, which as a commentator recently remarked would only keep the National Health Service going for a couple of weeks. The problem that one anticipates here is that there is a possibility that not only will two separate bodies be set up to administer two separate funds, but the administration costs will increase rather than reduce. There is always the worry in any event that the government will wish to reduce the budget still further and, while we hear Lord Bach saying how essential social welfare work is, the Legal Services Commission are doing little to encourage practitioners to enter that particular field of law at present.

The brink of collapse

Of course the criminal budget is significant. Then again, when you see how many new criminal offences have been created over the last 20 years it is blindingly obvious that there will be more recourse to the courts and a greater need for solicitors to defend those accused of crimes. The sheer scale of the legislation over the last 20 years, some of which is profoundly badly drafted, has led to an increase in Crown Court trials with the attendant costs. It is naïve of government to say that solicitors are simply lining their pockets under such circumstances.

What Mr Magee needs to look at is a system in crisis which is very likely going to collapse completely within the next ten years. Splitting the budgets could be a useful tool as long as there is a realisation that more than just a change of Master is needed.

The crisis in legal aid starts from the top. The Ministry of Justice seems to have a very difficult relationship with the Legal Services Commission, and the Law Society and the Bar Council do not trust the Legal Services Commission. We have government ministers talking of gravy trains and the fact that we appear to have the most generous system in the world, yet no one seems to look at the bigger picture which is to understand what will happen in the next ten years when the system does finally fold. And fold it will. Solicitors doing legal aid work have the same education as 'magic circle' solicitors and often they have the same bills to pay. Why then are they paid 75 per cent less?

The vast majority of legal aid firms in this country are run by people approaching retirement. There is little inclination for younger solicitors to become involved in the management of legal aid practices. The numbers of legal aid practices diminishes by the year and I know that in my area, where there used to be some 20 solicitors, there are now just two.

When clients cannot find solicitors to represent them they are likely to take matters in their own hands. Quite what that will mean I do not know but it is likely to be unpleasant. Neither do I know quite how the courts will cope with increasingly large numbers of litigants in person. I suspect that if I was a judge I would not be terribly happy with 20 litigants in person in my court each day.

Looking beyond the numbers

Sir Ian Magee needs to look at how splitting the current fund into two is likely to work out in practice. That is not just a numbers exercise, as legal aid is not just about numbers. He needs to work out whether there will in fact be a legal aid scheme in ten years time. Certainly, on the basis of the current crisis, where legal aid solicitors are running for the door marked 'Exit' and law firms are closing rapidly, there is no guarantee that there will be anyone left in the not-too-distant future. Any analysis of the numbers alone is likely to be a stale and worthless exercise. If, on the other hand, Sir Ian grasps the nettle, sees the problems, comes up with proposals that may ensure a future for what was the best legal aid system in the world, it is just possible the tragedy can be avoided.

Sadly, I expect that this rather rushed review (it is to report in January and Christmas is in the middle) will simply trot out a formula of two funds and leave the real questions to be answered by others.

This is all another dog's dinner.