On Saturday Supreme Court justice (at least until he retires next month) Lord Sumption gave a speech to the annual bar and young bar conference. What he said on the subject of legal aid has caused quite a stir amongst lawyers, including several eminent family lawyers, who have taken great exception to his comments. However, not everything that he said was entirely unreasonable.
Before I proceed I should explain that unfortunately at the time of writing this the full text of Lord Sumption’s speech does not appear to be available online. I am therefore only commenting upon what I have read in ‘second hand’ reports of the speech.
Lord Sumption reportedly said that whilst legal aid for criminal matters was essential, he believed that much of the civil legal aid budget was ‘discretionary’, and not fundamental when compared to criminal defence. He explained that governments must ensure criminal defendants are not left as litigants in person, but other parts of the justice budget ‘really are discretionary’, including much (but not all) of civil legal aid. He said: “Supporting the cost of civil litigation may be desirable in cases where people are too poor to fund it themselves. But it is not fundamental in the way that criminal legal aid is fundamental”.
These comments led to a flurry of adverse tweets from lawyers on Twitter. One, for example, pointed out that:
“Losing your home or seeing your child is, to me, just as fundamental as the consequences of criminal proceedings.”
Another, an eminent family law QC, said:
“This is rather disappointing. Had Lord Sumption spent some time in the Court of Appeal, where 40% of appellants are now litigants in person, perhaps he’d have had a greater appreciation of the benefits of civil/family legal aid?”
This, I think, is a reference to the fact that Lord Sumption was famously the first person to be appointed to the Supreme Court without previously serving as a full-time judge. Indeed, the suggestion by some is that Lord Sumption is somewhat out of touch with law “at the coalface”. It is of course true that the way we view the world is a product of who we are: our background, our experiences, and so on. Born into a well-off family, educated at Eton and Oxford, and doing extremely lucrative work as a barrister before being appointed to the Supreme Court is not, perhaps, the best background from which to comment knowledgeably upon the realities of the legal system for the worst off in society (I note that he once co-wrote a book with former Conservative MP and cabinet minister Keith Joseph in which they argued that no convincing arguments for an equal society have ever been advanced and that no such society has ever been successfully created).
But none of that is an excuse for what Lord Sumption said. If it is essential that someone facing criminal charges should be legally represented then it is just as essential that those facing life-changing consequences of proceedings in the civil and family courts are properly represented.
However, those comments were not all that Lord Sumption said. He went on to talk of the protests that barristers have made over the issue of the appallingly low fees that they receive for legal aid work, and here he did make a couple of good points.
Firstly, he pointed out that that barristers will never enjoy the same support as doctors and teachers. This is a truth that all lawyers must understand – without that support we will never receive the same treatment from government, no matter how strongly we put our case for the benefits of legal representation.
Secondly, he said that public demonstrations with ’wig on head look ridiculous’. They do. The wig is an absurd anachronism, which may be acceptable within the confines of a court room, but just looks plain silly outside of it. Like it or not, no one is going to take seriously a gathering of bewigged protestors. And this brings to mind the incident in which one protesting barrister was ridiculed for taking with her to the protest an expensive designer handbag.
And thirdly, he said that: “The only real weapons are to refuse to take instructions for inadequate fees”. Yes. This, I’m afraid, is how it must be, even if it plays into the hands of those who want to do away with legal aid altogether. Why should a lawyer, who has spent many years and (especially these days) a great deal of money on training be expected to do work at a loss? What other professions are required to do this? I can think of none. And refusing to work for inadequate fees throws the burden of protest onto the shoulders of those who suffer by having to represent themselves, or even by not pursuing their rights through the courts. Perhaps those in power would be more prepared to listen to their cries for help, than to the cries of those with designer handbags?
OK, so I don’t agree with Lord Sumption on the main issue, but I do think that he made some valid points.