The 60th birthday of legal aid is a good time to ponder its prospects for life in the 21st century. Are we celebrating a smug senior citizen grown too fat for his own good or an undernourished old codger too feeble to resist yet another state-sponsored mugging?

The government monitors the state of legal aid by all manner of indicators, yet it sometimes seems as if the cost of its upkeep is the only vital sign that matters. The mantra of the day from government is sustainability, but no-one outside Whitehall (or inside we often feel) is clear quite what that means; most times it just seems to be a polite way of saying there is less money available; and there certainly is going to be less money, of that we can be sure.

The Ministry of Justice has a budget of £10bn. We have been told it has to make £1bn of “efficiency savings” up to the end of the current three year spending round in March 2011, that is, 10% of its budget, plus it may be required to contribute towards a further £5bn savings that the government must make for the same period . Legal aid currently accounts for a little over £2bn per annum of that budget: will the cuts to legal aid be proportional i.e. 10%? Will they be less? More? We don’t know and the government is being coy on the topic but only an unbridled optimist would bet they will be less than £200m.

Reductions in legal aid spending are hardly breaking news and even before the economy fell off a cliff, the government had made its priority clear. Worshipping at the shrine of Carter and mumbling incantations about efficiency, the LSC has introduced a series of measures that are designed to reduce the spending on legal aid.

First, the eligibility for criminal legal aid is being reduced: in 2006, means testing was reintroduced into the magistrates’ court and the LSC plans to introduce into the Crown Court in the very near future. The scheme will be implemented in five Crown Court centres starting in January 2010 and the government hopes that when rolled out it will deliver annual net savings of up to £50 million per year, although at what social cost no-one yet knows.

Second, changes to the payment of legal aid have had the effect, if not the aim, of reducing the fees paid to solicitors. In April 2007, the LSC “rolled up” (in effect, abolished) travel and waiting for standard fee magistrates’ court cases. In January 2008 it introduced the Litigator’s Graduated Fee Scheme (LGFS). This provides fixed fees for the most common aspects of criminal litigation. Some firms have benefited financially, many have not, but there is a widespread feeling that the effect of these changes has been to diminish the quality of the service provided to legally-aided clients. Fixed fees for case preparation take no account of variations in the complexity and difficulty of cases and inevitably lead to lower levels of preparation in some cases. No matter how conscientious solicitors are, they have staff to pay and overhead costs to bear; they have in the end to make a living.

If it has not wholly caused the huge increase in HCAs over the last 18 months, the LGFS has undoubtedly contributed, as solicitors have sought to repair their incomes by taking on more of the advocacy in a case. Putting to one side the at-times acrimonious debate over the relative abilities of solicitor advocates and barristers, there can be no doubt that there are more advocates competing for a slice of the advocacy pie. At the moment, it is the junior bar that is suffering most but these changes to the profession are not confined to its less-established members. Most silks will have led solicitor advocates by now and it is surely only a matter of time before we see solicitor advocates leading barristers.

The independent criminal Bar in this country is a vital part of a healthy criminal justice system yet an almost inevitable consequence of these changes is that there will be fewer barristers in self-employed practice over the next few years and fewer new entrants to the publicly-funded bar. Uncertainty over the future is already making some large criminal sets reduce the pupillages they offer.

The latest Carter-inspired initiative is Best Value Tendering (BVT). The second consultation paper was issued in March 2009 by the LSC. It was a lengthy document (when are they not) which, in essence, proposed the introduction of a complex system of bidding for legally-aided police station work in an area with a winner-takes-all right to magistrates' court work in that area. BVT appears to be nothing so much as a Dutch auction to provide legal services at the lowest cost so long as a minimal quality threshold is reached.

It met with an almost universally hostile response from both sides of the profession . Although not directly affecting barristers, the Bar Council and the Criminal Bar Association quickly saw the damaging potential and jointly authored a paper that included a report from economic consultants (the Law Society did likewise) and to most fair minded observers, these reports demolished the economic case for BVT. Indeed, it was hard to discern what was the economic case in the first place, given that the costs of lower crime work (ie police station and magistrates' court work), so far from being out of control, had actually fallen.

So virulent was the opposition that the LSC has postponed national rollout until 2013 when there will have been (it is said) a proper assessment of the outcome of the pilot schemes in Avon & Bristol and Manchester.

In this flurry of cost-cutting initiatives, the role of government itself in driving up costs is often remarked upon and equally often ignored. The Howard League has reported that penal policy and the criminal justice system have been primarily responsible for increasing prison numbers. Since 1997 the government has created over 3,000 new criminal offences – almost half of which can attract a prison sentence - introduced over 50 bills and enacted 23 criminal justice acts.

The Prison Reform Trust has noted that the number of prisoners in England and Wales has increased by 30% in the ten years from 1997 to 2007 . Since 1997, more than 20,000 additional prison places have been provided, an increase of 33%.

All this hyperactivity has a price. It costs an average of nearly £41,000 a year to keep a person in prison and the average cost of each prison place built between 2000 and 2004 is just under £100,000 Total prison expenditure has increased from £2.843bn in 1995 to £4.325bn in 2006. There is a strong argument for saying that best way to control spending on the criminal justice system is to rein in this penal policy.

In any event, the savings from cutting legal aid may be more apparent than real if costs are simply transferred from one part of the system to another and that will happen if inadequate defence representation leads to (e.g.) trials being delayed or needlessly extended, defendants being wrongfully convicted, greater numbers of inappropriate prison sentences being imposed and more appeals being brought against both conviction and sentence.

The Family Law Bar, too, has been groaning under the weight of consultation papers thrown at it by the Government; three such papers were published in the six-month period between June and December 2008 dealing with reform of family Legal Aid. The last of these, entitled “Family Legal Aid Funding from 2010” was recently considered by the House of Commons Justice Committee in a damning report published in July 2009. The Committee concluded that “proposals for reform were based on incomplete data [and] a superficial understanding of the supply of legal services in this area.” The LSC’s approach to reform was condemned as “flawed, weak and inflexible” and it was criticised for “conclusions first, evidence after” approach to policy making, designed for a legal services supply model envisaged by Lord Carter which does not yet exist. The report concluded that the evidence to the Committee showed what was more likely to happen was already happening – was an exodus of senior practitioners from publicly funded family law.

The government says it wants to rebalance the legal aid budget so that more money goes on social welfare but this is a false dichotomy since there is in practice no sharp division between the two. Crime and family breakdown often go hand in hand and those who most often require housing and benefit advice are from the same socially-disadvantaged families that frequently require both criminal and civil legal aid. Most fear that so-called re-balancing is simply re-branded cost-cutting.

These are not happy times for the publicly-funded bar and the pattern seems to be the same in both family and crime: less money available from government, fewer people eligible for assistance, fewer lawyers willing to do the work and in the end, less choice for clients. Most practitioners fear that soon we will we end up with much less of a justice system than we have now.

Paul Mendelle QC
25 Bedford Row
WC1R 4HD