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Good politics, or good government?

by Richard Atkinson
19 February 2014

As criminal barristers boycott the most serious cases in protest at legal aid cuts, the MoJ has been criticised for a new recruitment campaign for advocates to join the Public Defender Service. Richard Atkinson, managing partner at Robin Murray & Co, explains below why the campaign fails to consider the long-term consequences.

Following the Bar’s boycott of very high cost cases (VHCC), the Ministry of Justice (MoJ) has responded by expanding the Public Defender Service (PDS) with the recruitment of two more silks to their ranks and undertaking a nationally advertised recruitment campaign looking to enlist more advocates at silk level and below. (How many publically funded criminal law firms could afford a quarter-page advertisement in The Times these days?) The MoJ has also started to put pressure on independent firms of solicitors to use these advocates when there are no members of the self-employed Bar available to take on these cases.

There seems to be no answer as to how the issue of conflicts of interest will be addressed by a group of advocates employed by the same organisation, unless a waiver of the rules regarding conflicts has been granted to the PDS.

The Bar’s boycott is its response to the government-imposed cut of 30 per cent to the rates paid for VHCC work, as part of its drive to cut £220 million from the criminal legal aid budget. Many believe that the cuts to criminal legal aid are both unnecessary and dangerous, and likely to seriously damage the already overstretched criminal justice system. Many have expressed these views very publicly (see, for example, the letters to The Times on 1 February 2014).

To be fair, the government has, through the Attorney-General, warned that if there was a boycott of cases by the Bar, it would ‘look elsewhere’ for others to do the work. This message, backed up by the PDS recruitment process, confirms that resolve. No doubt such a strategy is thought to play well to the hardliners who want to see lawyers ‘put in their place’, and that the government is taking a tough stance. They will view it as good politics, especially as we appear to have entered the early throes of election season. I question that move, however, because while legal aid has generally been viewed in the past as being politically unattractive and not a vote-winning or losing topic - like health and education - the truth is that the British public do care about justice. A May 2013 ComRes survey suggests that 71 per cent of the British public are concerned that cuts to legal aid could lead to innocent people being convicted of crimes they did not commit. Two-thirds (67 per cent) of respondents agreed that legal aid is a price worth paying for living in a fair society. The public are concerned that the government’s cuts of relatively small amounts of public money could ultimately lead to miscarriages of justice and a denial of access to justice.

It would no doubt be argued by those that seek to impose these cuts that, by expanding the services that are offered by the PDS, client choice will be increased and defendants will continue to be represented, and by pressuring independent non-PDS firms to instruct these advocates, they are demonstrating good government when faced with a boycott by advocates of the VHCC. Again, I challenge this. The reality is that however many QCs the PDS recruit, it will not be able to recruit enough to meet the demand that these cases generate. The cost of such an expansion will not measure up to the cost of employing advocates on a case-by-case basis as demand requires, and there seems to be no answer as to how the issue of conflicts of interest will be addressed by a group of advocates employed by the same organisation, unless a waiver of the rules regarding conflicts has been granted to the PDS.

This is not good government; simply the use of the power of the state to bully through its objectives irrespective of the cost and long-term consequences. Good government looks beyond the short term and perceived political advantages, and aims to sustain and deliver the core principles of our democracy, of which a sound criminal justice system, together with the NHS and universal free education, is a cornerstone.

I am afraid the expansion of the PDS is neither good politics nor good government. Yet if the government continues on its present course, it may not be until after the next general election before it finds this out. I hope for our justice system this isn’t too late.

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