Having digested a report by the Department for Constitutional Affairs, Roger Smith wonders whether it is interested in the quality of justice and the important role of legal aid lawyers

It is the season of departmental reports. The document for the Department for Constitutional Affairs (DCA) comes to 191 pages. It contains six paragraphs on criminal legal aid – four less than on the department’s communications strategy.


That says something about relative priorities – criminal legal aid constitutes one-third of the DCA’s budget. The report contains four pages on the Legal Services Commission (LSC), almost a third of the 11 pages on the National Archives; the LSC accounts for two-thirds of the DCA’s expenditure.


The DCA, it seems, would rather admit to be doing virtually anything else than legal aid.


In the modern way, the report orientates itself around objectives, targets, measures and outturns. The problem with management by objective is that if you set rubbish, you get rubbish. Behold objective II, target 3. This is ‘to reduce the proportion of disputes which are resolved by resort to the courts’. Alas, the DCA did not realise that the major job by volume of the civil courts is actually debt collection. It reports ‘slippage’ because the economic situation is such that more debt summonses are being issued than last year.


However, it argues these are not ‘“disputes” in the sense envisaged in the target’. Logically, to meet this objective, the DCA would ruthlessly raise fees, cut the accessibility of county courts, and remove legal aid. Now that would be silly, wouldn’t it? Actually, courts perform rather a complex range of functions. For example, in the international arena we might want to attract litigation to London rather than New York, which is why we struggle to keep the Commercial Court up to scratch. So, we might actually want to increase some types of non-family civil claims.


The department’s top objective continues to be to increase the number of offenders brought to justice. This seems to be going relatively well. However, there continues to be no recognition that the point of legal aid may be to impede offenders being brought to justice and that, again, there is a degree of complexity in the department’s role that is somewhat unrecognised.


Nor is there much in this report for practitioners involved in the justice system. Paragraph 1.1 defines the role of the department pretty clearly: ‘We work from the simple rule that we exist to serve the public – not the providers.’ You know what they mean but it is difficult not to read this as, on the one hand, gratuitously offensive or, on the other, suspiciously otiose – the worst of all worlds. Sure, some legal aid practitioners may make a fortune. But, on any given day, thousands play their part in courts all round the country with dedication, professionalism and, frankly, incomes that are by no means excessive.


Thus, legal aid practitioners are largely treated in this report either with sneers or silence. Of the six paragraphs on criminal legal aid, five relate to cost-saving measures. Interestingly, some events are just airbrushed out of history. Thus, the Criminal Defence Service Bill emerges only in its current incarnation. All mention of its first draft version has gone. Savaged by all who read it and the House of Commons constitutional affairs select committee in particular, the first version was withdrawn in ignominy. So, this is less of a full review of the year – more, severely edited highlights.


The problem is that the department is pitching itself as the Home Office’s little sister rather than a distinctive ministry of justice. It wants to join the big boys fighting asylum-seekers, combating anti-social behaviour and rebalancing the criminal justice system. Not for it boring old due process, rule of law and human rights – these are but irritating restrictions on what governments really do. With such a perception, a lot gets missed. There are, after all, some interesting developments in relation to legal aid – not all of which are about cuts. In particular, the LSC’s development of peer review puts it as a world leader. Its work on needs assessment has developed a methodology copied around the world. Of these, not a word.


Who do they think reads this stuff? If it is others within government, then send it around by e-mail and save the full-colour printing bill. If it is meant to be us, then they should stop producing reports that look too much like modern versions of the kind of thing that Stalin got from the lower Ukraine – ‘targets of glorious five-year plan exceeded again’.


A lot of people – many of them solicitors – do an excellent job for people in difficult circumstances. No harm in acknowledging that. No harm either in saying that, in doing so, they are doing exactly what the DCA wants. No harm, furthermore, in admitting that the DCA cares about the quality of justice – if indeed it does.


Roger Smith is director of the human rights campaigning group, Justice