Plans to cut £220m more from the legal aid budget are regrettable, will “drive out the best lawyers”, and may not produce significant savings, the UK’s most senior judge has warned.
In his most explicit challenge yet to government reforms, Lord Neuberger, president of the supreme court, implied that access to justice for all – particularly “the poor, the vulnerable [and] the disadvantaged” – is being put at risk.
Lawyers can be split into two branches of the profession, not barristers and solicitors, the 65-year-old judge suggested, but “lawyers who serve rich individuals and companies, and lawyers who serve ordinary citizens”. The first group are doing fine but “the latter are under intense pressure from legal aid cuts and, in some areas, from an overmanned profession”.
Neuberger’s forthright comments come in response to proposals from the justice secretary, Chris Grayling, to introduce price-competitive tendering in contracts to represent defendants during criminal trials, restrict legal aid and make it harder to bring judicial review challenges.
The consultation, Transforming Legal Aid, closed on 4 June. It has provoked mass protests by barristers and solicitors in London and Manchester. The Ministry of Justice is due to announce how it will deliver the reforms in September.
Delivering a speech on Tuesday entitled Judges and Policy: a delicate balance to the Institute for Government in central London, Neuberger prefaced his remarks with a defence of judicial intervention in policy areas where judges are experts. “While [we] should keep out of the Scottish independence debate,” he observed, “the most obvious topic on which the judiciary can properly contribute, and sometimes have a duty to contribute, is the rule of law.”
Neuberger said he was giving two more specific warnings about cuts in legal aid. It was a mistake, he said, to have a new legal aid regime with a costs structure “which will drive out the best lawyers” because good lawyers save money.
Reductions in legal aid and cutting the cost of litigation, he added, were likely to have a knock-on effect on the cost of the courts. Less legal aid would result in more unrepresented litigants “and worse lawyers”, longer hearings and judges having to spend more time considering cases.
Both the government and judges have a duty to maintain access to justice in an era of austerity, he said. “Lawyers and judges have a duty to help make the system work, as well as warning of the risks of cuts.”
Some “radical” economies may therefore be required, he accepted, such as “dispensing with disclosure of documents and cross-examination, even with an oral hearing, in smaller cases”.
Neuberger, who became supreme court president last October, also defended judicial review challenges. The ability to hold the government to account is essential to the rule of law, he said. “We should take great care in any approach to reduce access to judicial review. It is a small price to pay for a democratic and just society.”
Neuberger also announced that in future a senior judge with experience of Welsh law would be drafted into the suprme court to deal with cases “involving Welsh devolution issues”.
The MoJ has said: “At a time of major financial challenges, the legal sector cannot be excluded from the government’s commitment to getting better value for taxpayers’ money. Professional, qualified lawyers will be available, just as they are now, and contracts will only be awarded to lawyers who meet clear quality standards.”