Supreme Court justice Lord Sumption courted controversy at the weekend when, drawing a distinction with criminal legal aid, he labelled the civil budget ‘discretionary’. He also said that barristers demonstrating with ‘banner in hand and wig on head’ looked ‘ridiculous’ and were completely ‘counter-productive’.
Addressing the annual Bar and Young Bar Conference, Sumption said that legal aid cuts had ‘fundamentally changed the nature of practice in every area where the clients are too poor to do without it’. ‘That includes most crime and family work, two fields in which litigation is hardly ever optional. LASPO and the recent cuts in legal aid fees represent the latest chapter in a story which has been heading that way for more than 30 years,’ he said; adding that he welcomed the decision by the government to commit another £8m for criminal defence advocacy fees.
He went on to say that some elements of government expenditure were ‘discretionary’. ‘Governments decide how much money is available and cut their suit according to their cloth,’ he continued. ‘There are others which are fundamental to the whole purpose of government, and have to be paid for whatever the costs. Historically, the administration of justice was the raison d’etre of the state. The maintenance of a functioning system of justice is not discretionary. It is fundamental to the existence of the state and to our existence as a civil society… that means a functioning system of criminal legal aid.’
‘But,’ he continued, ‘other parts of the justice budget really are discretionary, even if the Bar is apt to forget the fact.’
‘That includes much (not all) of civil legal aid. Supporting the cost of civil litigation may be desirable in cases where people are too poor to fund it themselves. But it is not fundamental in the way that criminal legal aid is fundamental. However desirable, it has to compete with all the other calls on public funds: health, education, defence, social security and so on.’
Acknowledging that this was ‘not going to be a popular message in this place’, he said that the Bar’s response to such challenges had ‘not always been wise’. ‘In the first place it has overstated its case, by failing to recognise that we cannot return to the open-handed approach to legal aid that prevailed in the 1970s,’ he said. ‘There is a trade-off between the cost of the civil justice system and other kinds of government expenditure which are at least as important in the public’s eyes’. Secondly, he argued that the Bar had tended to run the kind of campaigns which ‘could only have worked if its cause enjoyed strong and instinctive public support. It does not.’
‘Most of the public believes that there is no smoke without fire, that people charged with criminal offences are almost certainly guilty, and that barristers are rich toffs who help their clients to avoid their just deserts. This is a travesty. But it is a deeply embedded prejudice which we have to reckon with,’ he said. ‘There have never been any votes in having a fair and properly functioning court system, fundamental as it is. Barristers will never have the kind of public support that nurses or teachers enjoy. This means that they cannot use the same campaigning methods. Public demonstrations with banner in hand and wig on head look ridiculous and are completely counter-productive.’ The Bar’s ‘only real weapons’ are to ‘refuse to take instructions for inadequate fees; and to work on ministers who, however resistant, are at least likely to have a better understanding of the problem than most of the wider public’.
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