Hamlet without the prince

Events which will play out during the remainder of this month are likely to have a significant impact on the future identity both of our profession and of the government, which are curiously intertwined in a fierce struggle at the moment.

The chancellor’s autumn statement will be made on Thursday. At the time of writing, I have no idea what it says beyond leaks and trails. But I think we can all be clear that its message is ‘There is no money’ or rather ‘There is a huge national debt which needs to be paid off’. In consequence, I think we can be certain that there will be significant tax rises and public spending cuts. What spending takes place will likely be on targets that gain traction in the popular press: maintaining the triple lock on pensions, and uprating benefits.

But we solicitors have a claim on public spending, too, as a result of our outstanding legal aid claim on behalf of criminal defence lawyers. I probably don’t need to rehearse the facts in detail: in summary, criminal legal aid barristers have been promised 15% (the bare minimum needed to make up ground, as recommended by the government’s own review), while solicitors have been dismissed with 9%, although that same government review recommended 15% for us, too.

The Law Society continues to strain every sinew to obtain a just settlement for our profession, while criminal legal aid solicitors are growing understandably restive.

The Law Society president has rightly said: ‘If the government doesn’t give solicitors parity when its full response to the review is published later this month, we will make it clear to our members that there is no viable future in criminal legal aid work.’

Criminal defence is an essential component of the identity of a solicitor, which justifies the quasi-public mantle which we all assume on qualifying - we have become part of the administration of justice. This is especially true of criminal defence work for those who do not have the resources to pay for it. This identity binds all of us together. To use a familiar trope, the rich City lawyer based in a building with a vast atrium of marble and glass, whose speciality is financial transactions of a mind-boggling size and sophistication, has a professional identity which is also inextricably tied to the notion that someone somewhere is undertaking criminal defence for the poor, to show the world that we are all part of the same public-service profession.

Without criminal defence lawyers, our profession loses a significant quality, bringing it closer to a trade or technical craft. When most lay people think about lawyers, they think only about criminal defence – from television programmes like ‘Rumpole of the Bailey’ to classic books and films like ‘To Kill a Mockingbird’. At parties, the single most popular question (so lawyers say) on revealing our identity is ‘How can you defend a criminal whom you know is guilty?’, even if you are an M&A lawyer in the City. Without criminal defence, we are Hamlet without the Prince.

I am perfectly aware that lawyers’ duties run the full gamut, and I do not wish to diminish the public importance of those who write wills, convey real estate, protect intellectual property, advise on tax, or indeed undertake sophisticated financial transactions in the City. But criminal defence work, whether we do it ourselves or not, is at the unconscious core of who we are and how we justify ourselves as professionals.

Similarly, running a proper criminal justice system is core to the identity of a government. It is a truism to say that one of the first requirements of a government is to keep its people safe. I fully understand why the triple lock and the uprating of benefits is so important. But it is an interesting question to debate as to whether a proper criminal justice system doesn’t come first.

The most recent figures show that almost 75,000 defendants were awaiting trial at the end of last month, which amounts to around 60,000 cases. That means that even more victims are awaiting justice, too. Lord Burnett, the lord chief justice, explained in evidence to the House of Commons Justice Committee last week that more and more sitting days are being lost to maintenance failure in court buildings. At the time of writing, it is not known how much will be cut from the Ministry of Justice’s budget this Thursday, but some cuts will almost certainly occur.

Both we and the government need a functioning criminal justice system if we are to maintain our identities.

If we are not successful in our aims this month, we will need to produce radical and innovative thoughts about how criminal defence work can continue, even if the government continues to fail in its duties.

Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society.