Britain could have a Conservative government in little over a year, or even sooner. What would that mean for solicitors? Catherine Baksi spoke to Dominic Grieve QC, the shadow justice secretary, to find out.

CB: As the 60th anniversary of the Legal Aid Act approaches, what is your view on how the current system is operating?

DG: Our view is that the legal aid system is undoubtedly in crisis. It seems to me that legal aid is no longer available for a large number of people who ought to be entitled to it. To take examples from my own constituency, I get individuals who may have purchased their council house in the 1980s and who are now retired on an old age pension with no other income. They have a dispute with a predatory neighbour who has damaged their property. Because they have the capital [value] of their house they are not able to get help seeking redress through the courts. At the same time, down the road, there’s a case which may have been deemed to be in the socially deserving category, like a traveller who is attempting to establish rights to keep their caravan permanently in the green belt – on the basis of a human rights act claim, but in breach of planning law. They are eligible for and receive large sums of money to bring the claim.

That is clearly a very unsatisfactory state of affairs and it bears no relation to the memory I have of how legal aid was available when I started in practice as a barrister in the 1980s. In truth, I think it is questionable whether the decision to move progressively to the ‘no win, no fee’ method was the right decision.

Would the Conservative party make more money available to fund legal aid?

The problem we’ve got, and I have to accept, is that there isn’t going to be any more money available, particularly as we are in the middle of one of the worst economic and financial crises this country has seen since the Second World War.

I certainly couldn’t make any commitment that more money would be made available to fund legal aid than is being made available at present.

How would your party improve the situation?

In an ideal world I’d like to do two things. Firstly, I’d like to see the criminal and civil legal aid fund split, because it’s the pressure on the criminal fund that has been reducing the available monies for the civil fund.

Secondly, I think there are strong arguments for taking a completely fresh look at the way we produce public funding for litigation and court work. In particular, back in the mid-1990s I took considerable interest in the debate about whether you could have a contingency legal aid fund – that is a subject that remains of considerable interest to me. The problem, however, and I have to accept it, is a contingency legal aid fund would require capital in order to start it.

There have been ideas floated within the party that we should look to see whether we could get private funding in. It’s a subject that the Society of Conservative Lawyers, albeit independent of the party, has been looking at.

But at this stage I can’t make any commitments about our ability to change things. What I can say is that I am convinced the current system isn’t working and I have serious doubts that it’s going to be possible to make the current system work without pouring a great deal of money into it. So it seems to me that we’ve got to look carefully whether there are alternatives we should be exploring to change the way funding is taking place in civil legal aid.

We aren’t yet at a stage to be able to give you any more details. Bear in mind I’ve been in my current job for two months. The point I’m trying to get across is that I have a continuing commitment to try to get a more equitable and better funding system, but I have to do that in the context of there being realistically no more money to be extracted from the Treasury.

What is your view of Jack Straw’s recent comments about the earnings of legal aid lawyers in the speech he gave at the LSE earlier this month?

I’ve been receiving letters in the last few days from practitioners in family law expressing grave concerns about the proposed cuts to their fees. The impression I get of those doing family legal aid work is that most of them are poor as church mice. Jack Straw’s comments don’t bear any relation to these comments. It’s not my impression that legal aid lawyers have been coining it from the public purse. I’d very much like Jack to produce chapter and verse.

I don’t know the hourly rates paid by government departments for external legal advice. Historically, my own experience is that they have always been prepared to pay the lawyers doing work for government what I would describe as a commercial rate. Part of that may sometimes have been on the basis that they would recover the costs from elsewhere.

Legal aid rates are plainly not commercial rates and the profit margins are minute. There can be no doubt that only efficient firms are going to prosper with the current financing available. But even where firms are delivering highly efficient service, that does not mean they are financially rewarded for it.

Would you continue the current moves toward best-value tendering?

It’s too early to say whether this is something we’d seek to carry forward if we got into power. My position is that I’m open-minded as to what works. My colleague, Henry Bellingham, is in charge of looking at how legal aid functions and how it can be changed. He’s talking to very large numbers of people, and I make it my business to go to the Law Society and speak to people from time to time.

When will your review of legal aid be published?

I can’t give a date, but I’d hope we would complete our work in the course of this year, because if we want to have ideas for going into government it’s got to be done before the end of the year.

How do you see the future delivery of legal services?

I have some anxieties around legal disciplinary practices and alternative business structures, but frankly it’s too early to say whether they will be taken up or whether they will deliver better service. The central issue is maintaining professional standards. As long as one can do that, they may prove to be a great success. So the regulation has got to be got right.

The arguments in favour, such as the benefits for consumers of having a one-stop shop for consumers and increased competition, are possible. Equally, my views have always been that the legal profession is slightly unlike most others – professional standards are essential for the maintenance of the justice system. Therefore, it’s particularly important that they should be at the forefront and may sometimes have to override commercial considerations.

How should the office of Attorney General be reformed to counter the widespread perception of partiality?

Our view has always been that the office of the Attorney General is very important and that, in its current guise, it delivers an essential link between government and the criminal justice system. I’m perfectly aware that it’s come in for quite a lot of criticism.

I don’t think you can sensibly remove accountability for the prosecutorial decisions at the very top of the system from a person who is answerable to Parliament.

Some have argued that the Attorney’s function should be split, so that essentially the Director of Public Prosecutions should be given total autonomy. I don’t think that’s a viable proposal. It will leave the DPP or whoever is at the top of the prosecutorial system exposed to criticism without being able to be protected by any government minister and without any accountability.

I just disagree with the public perception that the Attorney General cannot be sufficiently independent from government. It’s always seemed to me, and this may sound strange, that any decision to prosecute somebody is a political decision with a small ‘p’. It’s part of the public process of the state.

The key thing is, can an Attorney General, who is also a member of Parliament and the adviser to the government on legal matters, be capable of taking independent considerations free of party political consideration in the public interest, in the very small number of highly controversial matters which tend to land on their desk? My view is that they can. If you try to get rid of that system, you will generate as many problems as you solve.

I might just add in passing that although I combine the two roles – shadow justice secretary and shadow Attorney General – that is something available to us in opposition, but I want to stress it’s not something we’re about to continue into government.

Can you elaborate on your proposals for a British Bill of Rights and Responsibilities?

We’re proposing to replace the Human Rights Act with a British Bill of Rights and Responsibilities. It would have to be, and we would intend it to be, compatible with continued adherence to the European Convention on Human Rights. We intend to remain signatories and the Strasbourg Court will still be able to pass decisions in respect of the UK.

So it is axiomatic that what we’re seeking to do – while I hope it would deliver something slightly different from the Human Rights Act – must cover the rights protected under the convention.

Responsibilities must balance rights. Where rights aren’t absolute there would be some cases where, if you behaved irresponsibly, your ability to demand certain rights will be affected.

We think there are some areas of historic freedoms and liberties in Britain which ought to be protected and which don’t have any coverage under the Human Rights Act at all, such as the right to trial by jury.

We could probably do much more than the ECHR in terms of freedom of expression. We could also look at privacy law, which in many ways is developing piecemeal, and which demands some attention, particularly in respect of the balance between privacy and the right to impart or exchange information. I can’t elaborate further on this now.

What would your priorities for criminal justice reform be?

We have been overwhelmed in the last 12 years by a volume of criminal justice legislation that has been very ill-thought through, some of which has a profound impact on the relationship between the citizen and the state, and some which has tended to alter the rules of procedure in court – and I’m not sure necessarily beneficially.

I’m committed to carrying out, in our first year, a review of recent criminal justice legislation and identify elements that could be repealed. There is quite a lot of material on statute that has never been implemented. The last thing I want to do is have another criminal justice bill, if I can possibly avoid it. There might be a criminal justice repeal bill though, to get rid of some of the stuff that we think is completely otiose, but I certainly don’t want to land the judiciary in particular, or lawyers, with extra legislation.

There is one exception to that. We intend to have greater transparency in sentencing – which means that, in future, we’ll enact legislation so that judges are required to pass maximum and minimum sentences – the minimum which cannot be interfered with by the executive and that will be the minimum that somebody stays in prison. And then the question about whether they are released between the minimum date and the maximum date is a matter of them having concluded and done properly their rehabilitation and training.

The 2003 Criminal Justice Act introduced new rules about the admissibility of previous convictions that were supposed to have a profound and beneficial impact on successfully prosecuting the guilty. I don’t get the impression it’s done that at all and, in some cases, it may have dragged cases out longer. That’s not to say that I think that’s a candidate for repeal necessarily, but it does highlight that the government has, sometimes in the name of gimmickry, imposed a lot of changes that have not been beneficial.

What are your views on the proposed sentencing council?

We’re not against it, but we are wholly against the provisions in the Coroners and Justice Bill that effectively lay down requirements on the judiciary that fetter their discretion when passing sentences. We will be opposing them and seeking to get this deleted from the bill.

Are you in favour of the expansion of virtual courts?

I have nothing against the idea of using video links to shorten court time in some cases – that seems a perfectly sensible way forward. Virtual courts have a role, but I would be reluctant to see them being developed in any way that interfered with a client’s right to have access to their legal representative.

Are you in favour of Crown Court means-testing?

It’s an area we would review. I’m conscious that it may have the consequence of increasing delays in the system.

Do you support the government’s proposal to limit an acquitted defendant’s entitlement to claim back privately paid legal fees to legal aid rates?

No, it is wrong. If a person wishes to be represented privately or has to be, then they are entitled at the end of criminal proceedings in which there are acquitted to recover their reasonable costs in exactly the same way as they would be able to do in civil proceedings.

Would you be in favour of formalising plea bargaining?

I’m not against plea bargaining, but the way in which it is operated in the US raises very considerable difficulties, because the disparity of sentencing between a person who has accepted a plea bargain, and the person who fights, is so huge. Coupled with the draconian sanctions for those who are found guilty, it’s difficult to avoid the conclusion that it may provide an utterly perverse and wrong incentive for innocent people to plead guilty.

Would your party reform the murder laws?

We have no priority issue over reform of the murder laws. The difficulty the government has on this issue is that the Law Commission came up with a package, which I considered to be extremely well argued, but which envisaged having two categories of murder, with a mandatory life sentence only for first category. Politically, the government regarded this as unsaleable to the electorate. The result is that the proposals have been cherry-picked by the government, and they’ve now run into difficulties as to how to implement them sensibly.

Broadly speaking, we are supportive of the rules proposed in the Coroners and Justice Bill on diminished responsibility. But we have considerable anxiety and will try to persuade the government to change its mind over the rather bizarre set of rules they’ve introduced to deal with provocation. It’s beyond my comprehension why sexual infidelity should be excluded from the category of matters that a jury can consider when coming to a conclusion on whether there was provocation that should lead to murder being reduced to manslaughter.

Would you reform the divorce laws?

This is not an issue we have considered. My attitude is that divorce needs to be made as painless as possible for the parties. I’m much more concerned about an emphasis being placed on proper mediation in respect of the disputes that arise over children.

Would your party seek to promote mediation more generally?

We certainly believe mediation is a good thing. We looked at this very closely before the 2005 election, particularly in the context of post-divorce over children, and believe that a great deal more ought to be done in respect of it.

As for mediation more generally, it can be very useful, but it shouldn’t be transformed into a system that effectively discourages people from getting access to the courts. There’s a bigger picture in the background about the way in which, over the last 25-40 years, there’s been a proliferation of administrative tribunals, with almost parallel systems of justice developing. One of the issues I certainly want to look at is whether this all ought to be pulled together under the court system.

Are you in favour of opening up family courts to the press?

I’m very much in favour of it. Clearly we’re going to have to look carefully at how it works in practice and to ensure that anonymity and confidentiality can be preserved. I’m sure it’s possible to do that in the context of giving much greater journalistic access to the courts. And it must be in the interests of the family courts system to do it – all the evidence is that the inability to have that external scrutiny, which comes from people having an idea about how courts reach decisions, is very damaging to the quality of justice you can get in those courts.

What would your immediate priorities be if you became justice secretary?

My top priority is the prison system, second is getting a Bill of Rights and Responsibilities on the statute book, third is the current problems over legal aid, and fourth is youth justice.

We intend to end the early release scheme, which we think is wrong – it means that people are being released when they haven’t completed their rehabilitation and training. We intend to greatly reduce the use of fixed penalties and cautions – they do have their place, but they are not suitable for prolific offenders, which they are now being used for.

Dominic Grieve QC is shadow justice secretary and shadow Attorney General. Since 1997 he has been the MP for Beaconsfield. He was called to the bar in 1980 and took silk in 2008. He is a tenant at 1 Temple Gardens, specialising in health and safety work.