Dr. Tom Smith

Dr. Tom Smith, Associate Lecturer, Plymouth School of Law (HP) (Faculty of Business (HP))

The claim that England and Wales has “one of the most expensive legal aid systems in the world” is not new. Over the last year, the assertion has acquired renewed importance in the debate about the government’s reform of criminal legal aid funding. Its repeated invocation by the Ministry of Justice as justification for proposed cuts suggests that there is little doubt about the veracity of such a conclusion.

However, it has been consistently highlighted by lawyers, academics and other commentators that there are substantial issues with reliance on this assessment. Comparison of legal aid systems is nuanced and complex, and virtually every piece of research examining the matter has urged caution in interpreting the data collected.

Per capita spend

The government’s blinkered dependence on this argument oversimplifies and potentially misleads. The headline statistic quoted to substantiate the argument is invariably the per capita spend on legal aid in England and Wales (E&W). Various figures have been used at various times. According to the European Commission for the Efficiency of Justice (CEPEG), E&W had the second largest legal aid budget of 41 European jurisdictions in 2010: EUR45.7 per head (or 0.21% of GDP), the median being EUR2.2 per head [1]. In 2009, an MoJ-commissioned report authored by Roger Bowles and Amanda Parry compared E&W with non- European jurisdictions, including Australia, Canada and New Zealand [2]. Amongst the many statistical comparisons detailed, E&W showed a per capita spend of EUR33.5 on criminal legal aid, as compared with EUR6.3 in New Zealand and EUR6.2 in Canada [3]. These figures dated from 2004.

On reading the research, it becomes clear that a selective focus can easily be applied in highlighting certain statistics, dependent on the conclusion one wishes to draw. The available data suggests that there is “no escaping” the conclusion that E&W tends to spend more on legal aid (and criminal legal aid) per capita than jurisdictions to which it has been compared [4]. However, this is by no means the end of the argument; the deeper one digs, apparently firm conclusions become ever weaker.

Different jurisdictions

The issue of comparability of different jurisdictions looms large in all of the reports cited. For example, the difference between adversarial and inquisitorial legal systems is relevant. Adversarialism emphasises party-led proceedings, in which the defence lawyer plays a very prominent role. In contrast, inquisitorialism minimises the role of lawyers at most stages of proceedings, placing more responsibility in the hands of investigating judges. As such, there is a different division of labour in different legal traditions. In their report, Bowles and Parry stated: “Although legal aid costs were unusually high in England and Wales, the same did not apply to the overall costs of the Justice System… spending on courts and public prosecution were comparatively low.”[5]

According to CEPEG, in 2010, E&W devoted 1.9% of its total public expenditure to the justice system – the average figure [6]. Only 10.9% of this was allocated to the courts, with the average being 33.4% [7]. It is arguable that E&W, as an adversarial jurisdiction, focuses funding on the parties in the form of legal aid, whilst inquisitorial systems dedicate more money to a professional judiciary, prosecution and the courts. Bowles and Parry therefore suggested that “looking at legal aid expenditure in isolation risked missing important structural differences between justice systems” [8].

This is of course a simplification, and, as Cyrus Tata warned in his contribution to the book, Transforming Legal Aid, “it cannot provide the primary answer to the question of why international differences arise in criminal legal aid expenditure” [9]. It does, however, place the government’s approach in a more informative context and raises questions about the “expensive system” argument.

Multiple causes for differences

Perhaps to evade such issues, the government has fixated on “similar” Commonwealth countries – most notably New Zealand – that spend less on legal aid despite having adversarial systems. However, such comparisons also have problems. Parry and Bowles found that E&W had a higher expenditure per head for criminal legal aid cases but suggested that this could be due to the “combined effect of higher case volumes and higher than average cost per case” (10). E&W had a higher crime rate and saw more people brought to court when compared with New Zealand [11].

The higher cost of cases in E&W has a variety of potential explanations, posited by Parry & Bowles and others in their research. An obvious one is what Paterson, writing for the Justice Gap, describes as the “disproportionately large slice of the criminal legal aid budget” devoted to very high cost cases (VHCC) in E&W [12].

All of this suggests that there are various factors that may influence high levels of spending on legal aid in E&W, besides any crude assumptions of unchecked liberalism and irresponsible profligacy. Indeed, Parry and Bowles stated that the level of spending “appeared to have multiple causes”, making it “difficult to produce quick fixes” [13]. As such, cutting headline budgets may not automatically lead to a cheaper system. Importantly, all of the cross- jurisdictional research comparing legal aid spending underlines the complexity of such work. Research is shaped by methodological choices and does not always produce clear-cut, straightforward conclusions. The National Audit Office provides an excellent summary of the benefits and problems of comparisons in this area [14]. Parry and Bowles asserted that “all comparisons… should be treated with care as to their interpretation” and cautioned that the “findings were intended to be suggestive and provocative rather than definitive”[15].

In practice, the government appears to have ignored this advice, opting to rely on this argument without fully considering the limitations. Sensible policy- making would avoid selecting only those elements which support a preferred conclusion. However, one fears that a predetermined cost-cutting agenda is the true driver for reform, whilst the “expensive system” justification provides a convenient cover.

Although the high level of spending on legal aid in E&W is an important issue to explore, there are few clear conclusions about why this is. What is clear is that its complexity is worthy of more than a generic sentence in a press release.

References

[1] European Commission for the Efficiency of Justice (CEPEJ), European judicial systems: Efficiency and quality of justice (2010 data) (2012), 45
[2] Bowles R., Parry A., International Comparison of Publicly Funded Legal Services and Justice Systems (2009), Ministry of Justice
[3] Ibid 22
[4] Ibid 36
[5] Ibid
[6] CEPEJ European judicial systems, 25
[7] Ibid 26
[8] Bowles, Parry, 36
[9] Tata C., “Comparing Legal Aid Spending: The Promise and Perils of a Jurisdiction-Centred Approach to (International) Legal Aid Research” in Regan F., et al (eds.) The Transformation of Legal Aid (1999, OUP), 136.
[10] Bowles, Parry i [11] Ibid ii
[12] Paterson, A., ‘Comparisons Are Odious’, (2012) The Justice Gap
[13] Bowles, Parry iii
[14] National Audit Office, ‘Comparing International Criminal Justice Systems’ (2012)
[15] Bowles, Parry 3

Dr Tom Smith, University of Plymouth

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