Is the MoJ robbing from the rich?

Halloween costumes may now be purchased at a discount, but Michael Gove's apparent penchant for stockings appears to have aligned him with the fictional woodland terrorist Robin Hood.

Back in June, the newly elected Lord Chancellor introduced the idea of the 'lawyers levy' in his first speech as justice secretary, suggesting the country's leading law firms 'who have benefited financially from our legal culture need to invest in its roots'.

Whether this was the governmental equivalent
of robbing from the rich
was initially uncertain, and clarification at the time that 'more could - and should - be done by the most successful
in the legal profession to help protect access to justice for all' didn't really help.

Now news has come of proposals for a compulsory
tax on the Top 100 corporate firms. Whether this is intended to replace as an income stream the unpopular and widely criticised criminal courts
charge or not, it would certainly be popular with the Treasury. Reports suggest it could raise upwards of £190m each year
to fill the financial gaps in the justice system.

As you might expect,
the Law Society has come
out strongly against the levy, with its president, Jonathan Smithers, branding it a 'tax
on success' which puts at risk the profession's international standing as the jurisdiction
of choice. But if the money has to come from somewhere,
how else can it be replaced?

If it is the genuine intention
of the Ministry of Justice (MoJ) to protect access to justice, the current proposal will only do half a job, at best. Even if cash is collected, it must be ring-fenced to ensure it is directed correctly and not swallowed up by bureaucracy.

If the levy means an
increased legal aid pot (unlikely), there may be some buy-in from successful firms,
but as has always been a fundamental principle of pro bono work, it should be given freely and willingly and not because of any obligation.

The true value of pro bono work - to the lawyer, the
firm, and the profession - is undermined when it is made compulsory.

A few years ago I chaired the judging for the junior lawyers pro bono awards. What stood out were the remarkable achievements of those who committed so much of their spare time to causes they were passionate about. This was work done not in the course of the working day, but during weekends and in the evenings.

Of course, where firms can devote hours to pro bono initiatives (and recognise those hours with the same value as chargeable ones), it should be celebrated and encouraged,
but while there are tough
times still ahead for many
firms, even within the Top 100, enforcing such requirements may prove counterproductive and destabilise the incredible
work which is already being volunteered.

The justice system may be broken, but to fix it the MoJ must work with lawyers and
not against them. SJ

Kevin Poulter is SJ’s editor at large and a legal director at Bircham Dyson Bell

@kevinpoulter

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