Speech to 'One Bar, one voice' event by Timothy Fancourt QC, Chairman of the Chancery Bar Association

10 February 2014

I have real concern at the damage that the consequences of the legal aid cuts may do to the reputation of the justice system of this country. 

At 3 levels:

(1) first, to the reputation of the English system for providing effective access to justice for those who are not able to stand up for themselves.  My fear is that the legal aid cuts will inevitably lead to more litigants having to act in person and more litigants being inadequately represented or advised. 

(2) second, to the reputation of the English justice system as having a cadre of the most able and talented advocates, willing to act for a basic fee for anyone who needs representation.  If the proposed cuts proceed, it seems very likely that many of the most talented will diversify away from legal aid criminal work.

(3) third, to the reputation of the English judicial system worldwide for having the best judges and the best advocates, ensuring that justice is done in every case.  Don't take my word for it.  Let me read you this: 

"In Britain, we have a justice system of which we can be proud and which justly deserves its world-wide recognition for impartiality and fairness.  As part of that system, legal aid helps thousands of people a year to access justice and ensure fair outcomes".   (The MoJ's first 'Transforming Legal Aid' Consultation paper, personally endorsed in a foreword by Chris Grayling.)

The legal services industry makes a huge contribution to the Exchequer.  When it comes to invisible exports to international consumers, the Government is very approving: I quote:

"We recognise the importance of the UK's legal services sector and the excellent reputation its legal services providers have at home and abroad.  The sector contributed £20.9 bn to the UK economy in 2011, £4 bn of this derived from exports.  It is important that we consolidate the UK's international standing in what is becoming an increasingly competitive international field"  (Chris Grayling, in a foreword to a MoJ /UKTI paper on UK Legal Services on the International Stage.)

And of course the Lord Chancellor is about to trumpet all these virtues to the visiting world at the Global Law Summit in 2015. 

But is the Government not missing something here?

Surely it must recognise that it is taking an unacceptable risk with the reputation of the system in which it finds such virtue?

It is difficult to see how draconian cuts in funding can do otherwise than introduce a material threat to the quality of advice to and representation of defendants.  There must, at  least, be a substantial risk that corners will be cut and the standard of advice and representation will significantly decline, as fewer of the most talented are willing to work at rates of pay that are not viable.  There is also the substantial risk that large complex cases will become unmanageable. Miscarriages of justice will inevitably increase.

The impact of this in economic terms, and in terms of individual justice, is obvious (to anyone who understands the system).  But more than that, the reputation of the system of justice in this country as a whole may well suffer, and if it does this may cause lasting damage to us all. 

If the reputation of the justice system is publicly damaged, the harm may not be restricted to the domestic environment or limited to the criminal justice system. 

The foreign earnings that the Lord Chancellor so approves of depend fundamentally on the high reputation of this country's justice system.  There are some very mature competitor jurisdictions out there in the world, all well-funded by their Governments, who will target London's work if the reputation of London for justice is damaged.  As we all know, damage is easily done and very hard to rectify.

The leaders of Combar, LCLCBA, FLBA, TecBar and PropBar and I made all these points to the Lord Chancellor and to Shailesh Vara in a letter sent on 18 December.  On 22 January, we got a reply from the Lord Chancellor.  Two pages, but only two sentences really addressed the arguments that were put in our letter.  The rest was only familiar self-justification and denial.   

The truth, I suggest, is a truth that the Government dare not admit.  The Government is very keen on lawyers who bring in large amounts of revenue to the Exchequer, but they are not keen on lawyers who cost the Government money.  (They regard it as their money, though it is of course your money and my money).  Moreover, the Government simply does not believe that those accused of crimes, or those who are challenging the Government in judicial reviews, deserve the services of a top quality advocate at public expense: someone who is competent, and who will work for a pittance, will do.  It is of course the American model, and those who do not want to end up there should continue to oppose the Government's proposals.