The government is implementing reform to the legal system which may have an unintended constitutional effect. Reducing funding to lawyers who represent those accused of crimes is a move which wouldn’t cause a stir on the Clapham omnibus, but there is plenty of concern from lawyers themselves – some of whom are going on strike. When those downing tools are the ones who provide a voice to often marginalised people against an imperfect state, it’s time to be concerned.
Defending a man who faces jail is no easy task - but we can all agree that it is one of huge importance. You’d be horrified if the NHS were reorganised so that more top talent defected to Hollywood to perform breast enlargements, yet it is increasingly unattractive for good lawyers to go into Legal Aid criminal law.
Once it was possible to make a living on legal aid work. Now, the career is barely sustainable. Junior barristers have days when it costs them more to reach the courthouse than they will be paid.
The Government is trying to cut the £2bn it spends on legal aid and plans to introduce price-competitive tendering for contracts. A tendering system like this will reward high volume providers, but bulk-bidding will hurt local high-street firms who will not be able to compete on price against call-centre lawyers operating a ‘pile-it-high and sell it cheap’ model.
Rather than training up the brightest, our courts may be filled with supermarket chain employees providing legal representation for customer loyalty points.
Britain operates under ‘common’ law, a system of laws made by judges whose judgments become binding precedent for later courts. Unlike the French, who have a codified legal system, and the Americans, who have the protections of a written constitution, some of our most significant laws have been developed by judges. European politicians write laws as code. Ours on the other hand are subjected to refinement and interpretation by judges. That makes the legal system particularly significant in our constitutional arrangement.
For one, courts act as a bulwark against unreasonable laws, or the sort of deluge of hastily drafted criminal laws that we saw under New Labour.
Tendering work in volume to the lowest bidder may reduce the time spent on the legal aspects of cases: but your Eddie Stobart or Aldi lawyer may not have the time to spot an argument which should be appealed, and development of the common law slows, possibly even stalls.
It isn’t just that the quality of advocates will be lower, and the hard points may therefore go unnoticed, but that legal evolution will more frequently have to wait for rich people to have problems, rather than afford any individual the proper chance to argue that a mistake has been made, or a decision taken unreasonably.
Fewer cases may be fed into the process of interpreting parliamentary intention and refining judicial reasoning, and when in future a case reaches appeal courts, the judges sitting on those cases could be quite different.
If all the smartest, most successful judicial candidates are bled from criminal courts and find themselves spending their years at the bar in a sea of ringbinders concerning offshore tax disputes or trademark infringement then a decreasing number of them will have ever sat with someone in a cell and seen her weep as she explains her life story, or pleaded with a jury for faith in their client.
All of human life reaches the criminal courts. Our senior courts make decisions in all areas, and to do so they need judges from all disciplines - those who have drank champagne with corporate clients and those who have sipped the vending machine coffee in a magistrates’ court.
The coalition must grapple with the economic mess that they have inherited, and they have often talked about how Labour failed to mend the roof when the sun was shining, but they should be careful not to leave behind a subtle, but no less dangerous problem. Our legal system is a quintessentially British pillar of the constitution, and it requires talented people to sustain it. The Lord Chancellor is right to make sure that the pillar is not too expensive, but needs to realise the importance of keeping the house upright.