Law: Costs rise, but quality does not

Despite its defeat in the Lords, Lord Irvine defends his proposal
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The Independent Culture
CRIMINAL LEGAL aid is a classic demand-led system. How much it costs the taxpayer depends on how many people find themselves either in police stations under suspicion, or in court facing charges. Last year, criminal legal aid cost the taxpayer pounds 733m. In five years, costs have gone up by more than 40 per cent, but the number of cases dealt with has risen by only 10 per cent.

Rising costs are not matched by any evidence of improved services to defendants or value for money for the taxpayer. And every penny spent on criminal legal aid is a penny out of my budget that cannot be spent on civil legal aid - helping people to protect or assert their rights.

People defended against criminal charges at public expense must be represented by high-quality lawyers, whether in the police station or in court. At present, any formally qualified lawyer can do criminal legal aid work and send in their bill - this is no guarantee of quality service for people accused of crimes, and no way to make sure the taxpayer gets value for money.

There is no universal high quality among those who defend in our magistrates' courts or Crown Courts. People who are charged with criminal offences can and do find themselves with a weak defence counsel up against strong prosecuting counsel.

In all areas of legal aid, I am determined that the Government is active in securing quality services for people who need them - put bluntly, providing good lawyers - rather than simply reactive in paying any lawyer's bills for whatever sort of work is done. But I must aim to deliver quality and economy together, within a controlled criminal legal aid budget.

The new Legal Services Commission, proposed in my Access to Justice Bill, will organise the Criminal Defence Service largely by contracting with quality-assured lawyers in private practice.

This does not negate the principle that a defendant should be able to choose his/ her own lawyer. All that will change is that the lawyers will be quality-assured and will have a contract with the Criminal Defence Service. Fixed price contracts will be an incentive to efficiency. Competition for contracts will maintain quality of service and provide value for money.

While most criminal defence work will be done by lawyers in private practice working under contract, I believe the Criminal Defence Service should also be able to use directly employed lawyers, or salaried defenders. But let me say plainly that the Government has no plans to move towards a wholesale salaried public defender system to replace private practitioners.

Nor is it part of my plans that any services provided by salaried defenders should be in any way second-rate compared with contracted lawyers in private practice. Just the opposite. Where salaried defenders might begin is by plugging gaps in defence services by lawyers in private practice. In this way, the cost and quality of salaried defenders could be compared with their private sector counterparts.

The prospect of even a small number of salaried defenders has met with special pleading by vested interests. It is claimed that a state-paid salary and independence in defending are incompatible, or that there will be unhealthy collusion developing between salaried defenders and those lawyers employed by the Crown Prosecution Service.

Barristers in private practice claim too much for themselves when they ask people to believe that only they can be honourably independent defenders. The judges are employed by the state; their independence is beyond question. Prosecuting counsel are members of the independent Bar and yet they are instructed and paid, case by case, through the Crown Prosecution Service. Do they lack independence of mind because their livelihood comes from a single, state source?

How can they be seen as being at less risk of pressure or inducement than an employed lawyer with job protection and a steady salary?

The Access to Justice Bill currently going through Parliament will give all advocates statutory protection of their overriding duty to the court and to the interest of justice in accordance with their professional rules of conduct.

My proposals for the Criminal Defence Service are practical and contain incremental changes to the way people are defended at public expense. We will continue to proceed with piloting schemes and consultation. We will rely on contracted, high-grade lawyers in private practice.

Salaried defenders are no threat to the independence of lawyers or the rights of defendants. But they are the way towards guaranteeing good quality, publicly funded criminal defence services, provided by lawyers whose fundamental duties are to their clients and the court, and at a price the taxpayer can afford.