Apples and Oranges

And so this evening my eye fell upon a piece in The Spectator Online by Ross Clark, you can read it by clicking on this link. My attention was drawn to the article by the howls of wounded lawyers taking to Twitter to say “pah” or to invite Mr Clark to spend a day with them to see how the legal system really works. So I was forewarned lawyers would come out of the article badly. I had no idea how badly the authors of comment pieces in The Spectator would also fare.

The title is “Why MPs should not stop legal aid reform”. The catalyst for the piece is the recent pronouncement of Nigel Evans MP that legal aid reform had gone too far, something he discovered for himself when accused of a crime. The premise of the piece – well that may take a little more unraveling, but I will give it a go. Mr Clark seems to be suggesting that the law is an industry which is resistant to change and operates as a conspiracy to make it too complicated for the layman to represent themselves. He argues that reform is needed to simplify the law and procedure. So far so good (although the I confess to having a wry smile at the  use of the word “arcane” in a plea for simplification) but I cannot help but feel this is not foreshadowed by the title or by the catalyst in the iniquity of acquitted defendants who do not qualify for legal aid having to fund their defence.

The headline lays down the gauntlet as to why MPs should not stop legal aid reform, regurgitates some figures about the cost of legal aid (and more of that in a moment) and then goes on to propose reform to the legal system. It fails singularly to deal with the issues raised by the case of Nigel Evans. It does not deal with the issue of those denied access to justice whilst the legal system remains as it is but funding is denied to so many. It fails completely to deal with any issue about the provision of legal aid. It is the equivalent of me standing before a jury to do my closing speech and delivering a plea in mitigation.

The complaint is made that complex language and procedures keep the layman bewildered by the legal system and that the answer is reform to make it clearer so that people like Nigel Evans can represent themselves. This argument always ignores the fact that most lawyers bring more to the case than their knowledge of law and procedure. We bring skills in litigation and advocacy that go way beyond what is written in a statute or contained within the law reports. Thinking that if only we make the language less complex and the procedure less procedural we will open up law to non-lawyers equates to making us all pilots if only we stop calling it the altimeter and instead refer to the “how far we are off the ground” dial.

Time and time again both experience and academic study shows that lawyers can save an awful lot of time. One of the main things I do is act as a filter between what the client may think is relevant and what is actually relevant. I spend hour after hour agreeing issues and evidence with my opponent that someone without my experience and detachment would never agree.

That is not the only filter I provide. The law recognises that people charged with the sort of offences of which Nigel Evans was acquitted should NEVER be allowed to cross examine the complainant themselves. This is a law which is good. This is a law which benefits those who are the victims of such offending. It encourages reporting. It facilitates the complainant giving their evidence in the best way possible in the circumstances. So which reform would Mr Clark like to see where someone in Mr Evans’s position would be given the ability to cross examine their accuser? Not all in this position are innocent. You get very unpleasant individuals only too eager to exercise control over their partner through the witness box. I am a filter. I am a safeguard. A safeguard that legal aid reforms has now removed from many a family case. What a triumph.

And now the figures. This is depressingly familiar. Depressingly misleading. Depressingly inaccurate. The piece states

“A Council of Europe Report in 2014 – after the legal aid reforms began to take effect – calculated that UK taxpayers were spending £2 billion a year on legal aid, compared with just £290 million in France and £272 million in Germany.”

Now this is where I would suggest it starts to go badly wrong. The suggestion is that we spend £2 billion a year on legal aid after these reforms and, therefore, more reform (i.e. cuts) are required. In fact the spend on Legal Aid in 12/13 was £2.2 billion; 13/14 £1.9; 14/15 £1.7; 15/16 £1.5; 16/17 £1.6 and 17/18 £1.6. The MOJ budget has suffered the biggest cuts in Whitehall, down from £10.9bn to £6.4bn.

It is wrong and a little bit lazy to quote £2bn without the further context of what the Legal Aid spend is now when considering whether the legal aid system, or indeed the legal system, requires further reform. And yet the really misleading bit is not in the figures. Or the context. It is in the statement that the £2bn came from a report in 2014 after the complained of cuts had already done their work. Just a moment with Google would tell Mr Clark how misleading this is. LASPO gained Royal Assent in May 2012. Many of the changes in Legal Aid were introduced in April 2013. The system whereby acquitted offenders of certain means footed the cost of their defence was not introduced until January 2014. Inevitably the “savings” take a while to show in the figures. In 2014 the cuts had barely had time to have an impact. It took time. Hence the decline we see in the figures I quote above.

You may well think I have been a little unfair on Mr Clark. Google would tell him that LASPO was in force in May 2012 so the report he quotes could reasonably be said to be after the reforms had begun to take effect. Google may not have told him that the changes were staged over a long timetable. But Google would also have given him access to the report. Even five minutes with the report itself would have told him that the figures in the report were from 2012 at the latest. That is before the legal aid reforms were implemented. Looking it up on Google and reading the source material is not Pullitzer Prize winning journalism.

The bizarre thing is that the piece manages to argue against itself, I suspect unwittingly. The comparison is made with the Legal Aid spend in France and Germany. The piece further argues that reform to our legal system, to make us more like Germany and France, would see our legal aid budget further reduce. This tells us that the system may be a driver of cost.

Let us look more at the 2014 report. It tells us of the whole spend of countries on courts, legal aid and the public prosecution system. The figures show that England and Wales spent €5.4 bn (population 56.6 million), Germany €9.1bn (pop 80.5 million) and France €4bn (65.6 million). The costs for the court system excluding legal aid per inhabitant is €103.5 in Germany but only €42.2 per person in England and Wales. If Herr Klark in Das Spectator has used that figure to suggest reform is needed to the German Court system because we spend so much less than them, well they would be comparing Apfel und Orangen.

Time and time again it is pointed out that comparisons of legal aid spend in an adversarial system to the legal aid spend in an inquisitorial system is almost meaningless, and yet, like HG Wells’s Martians, still they come.

The legal profession is less resistant to change than many would believe. What we are resistant to is the poor and misleading use of evidence. We are resistant to misinformation and the misinformed. Mr Clark is more than welcome to advance his views on reform to the legal system but they need to be based in reality. They need to deal with the real injustices happening week in and week out because of the removal of legal aid and suggest something for the here and now. If he sees the long term answer to be a reform of the judicial system that has to be thought out with cost implications, both financial and societal. And whatever he argues for, he needs to rely upon more by the way of research and less by lazy trope.