McNally: ‘Access to justice’ doesn’t mean access to a lawyer

It was time to ‘move on’ from the ‘bruising’ LASPO debate, the Lord McNally said yesterday. The legal aid minister told delegates at an event organised by the Westminster Legal Policy Forum that this month’s cuts would save £180m per annum alone. ‘Yet on the criminal side, we’re still spending £1 billion every year. A significant proportion of this spending is swallowed up by a few very high cost cases,’ the legal aid minister added.

The peer promised a better deal for the tax-payer by cutting the costs of the most expensive cases by a third; bringing in competition; and ensuring that those who can afford to pay for their legal costs aren’t routinely in receipt of public money referring to the recent Transforming Legal Aid consultation. ‘But we’re already going further to ensure that the taxpayer isn’t footing the legal aid bill for convicted criminals,’ he said. ‘We’ve already announced plans to seize the cars of criminals to recover the cost of their legal aid. And soon we will be able to take into account frozen assets as part of the means test.’

  • You can download Lord McNally’s speech (HERE).

In a paper released for the forum, Roger Smith, the former director of JUSTICE, argued that the ‘fundamental nature’ of the legal aid scheme was changing. It was no longer what Americans might call a ‘judicare’ model under which clients were ‘free to choose from a wide range of private providers available’. ‘Instead, the Ministry of Justice will introduce what everyone else would call a contracted public defender scheme in which clients are allocated among a smaller number of providers who have bid for restricted rights of representation. For my part, I think that the scheme should be renamed to indicate the magnitude of this change – for clients as much as providers,’ Smith said. There was ‘considerable domestic prejudice against public defenders’. However, criminal legal services were widely delivered by public defenders around the world and in the US, public they were ‘the delivery system of choice’.

‘What would the foreign experience tell you if you cared to look? Well, nothing that perhaps you would not expect. An obvious problem for any contracted public defender system is that the commercial imperative on the provider becomes to reduce the cost per case to the minimum possible.’
Roger Smith

You can read Roger Smith’s paper HERE.

Lord McNally said that he wanted to ‘move the story on’. ‘We need a proper debate now about precisely what sort of legal aid model we have in this country. I know only too well the strength of feeling. I can understand why the professions feel bruised.’

The peer took issue with ‘those who would have it that access to justice means only one thing: access to a lawyer funded by the taxpayer’. ‘This simply isn’t the case. Access to justice didn’t start in 1949. The age old rights to a fair trial, now backed up by the European Convention, were ingrained in our constitution long before then.’

On the prospects of litigants in person ‘clogging up the system, raising costs’, he said: ‘I don’t believe that is inevitable. Neither do I agree with those who suggest that representing yourself is some radical new concept. It is a fact of life and one that our justice system can – and should – take into account. Already legal representation is the exception rather than the norm in the small claims courts. And in the family courts, people often represent themselves. In around half of all private children cases at least one party does not have a lawyer with them.’

He argued that litigants were not ‘some homogenous group’. ‘People involved in litigation are engaged in all sorts of different disputes, each with different needs and capabilities. And for many, representing themselves will, can and should be a matter of choice.’



About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

There are 1 comments

  1. How can it be argued that access to justice does not mean access to a lawyer? How can anyone have access to a right they do not know exists? And even if they do, do not know how to enforce it.

    Cost cutting has been used as an excuse to dismantle, and effectively eradicate the rule of law, and any meaningful access to justice by an individual.
    The fact, our constitution says we have access to justice is irrelevant, if de facto we do not. The fact that such a right exists also proves our government, in preventing us exercising it is acting illegally, and should be stopped, but due to the subversion of democracy by a coalition, constitutionally this would appear very difficult.


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