The reports in October 2008 of cutbacks at the Ministry of Justice are the latest measures taken by the Government to reduce the expenditure on the justice system as a whole.
These are not the first budget cuts which are likely to have an impact on the workings of the justice system in England and Wales.
The courts and legal aid system have been at crisis point for some time, so there is no scope for further cuts without cutting into vital public services.
The Court Service itself has suffered from years of underinvestment, and we badly need sustained investment in court staff and their supporting infrastructure. Job cuts and the abandonment of longer-term programmes to modernise court infrastructure are not the right way forward for court users or the wider public interest. A modern, efficient court system is essential to the well being of the economy as a whole.

Legal Aid
There are ongoing concerns about the possible impact on the legal aid budget of the budgetary pressures that have been revealed. We already know that the Carter reforms have led to the Government making significant savings as against the previous trend lines for legal aid expenditure, and we have received repeated assurances that the Ministry believes that legal aid expenditure is now sufficiently under control that no further cuts or restructuring will be required beyond those proposals already signposted, such as for Crown Court means testing, private law family litigation and family advocacy.
Moreover, in the light of the Ministry’s willingness to reach a deal with QCs that increases the payments to the highest paid barristers in the system – albeit on the basis of arrangements that should be cost neutral – it would be politically very difficult for the Ministry now to make cuts elsewhere that impact on solicitors or clients. In the light of the unequivocal assurance from Justice Secretary, Jack Straw, that this settlement was affordable, any cuts to the system that impacted upon the solicitors profession would be viewed as a significant breach of faith by the Ministry.
The cuts in staff at the Legal Services Commission (LSC) do give some cause for concern to barristers as well as solicitors. Practitioners frequently complain about delay in their dealings with the Commission, and it would be very damaging if the effect of these cuts was to increase delays.
The delays in responding to case plans in very high cost family cases are exorbitant. During the credit crunch, it is more vital than ever that bills are processed and paid promptly. It would not be acceptable if these matters were addressed at the cost of introducing new delays in parts of the system that are currently reasonably efficient.
Having said that, this could represent an opportunity for the profession. The LSC needs to recognise the limits on what it can reasonably achieve, and to tailor its activity accordingly. This may require a reduction in the information it demands from firms, to reflect what it genuinely has the scope to process. There is no point in demanding huge amounts of information that are never processed and don’t add value to the planning and/or accountability of the system.

It may involve radical downsizing of its audit policy. In theory, since a peer review result lasts three years, every firm should be reviewed no less often than once during the life of each contract. In practice, the LSC is able to achieve only a fraction of this target. The system needs to be designed in accordance with what the LSC can realistically do in practice, not what it would like to do in an ideal world. This applies with equal force to the design of the scheme for quality assurance for advocates.
It will hopefully involve the devolution of much greater powers to the lawyers and advisors to take the steps professionally necessary on a case. At present, firms have to undergo a degree of micromanagement on individual cases that would be hard to defend even if the LSC did have the resources to do it effectively.
In terms of proportionality of cost to result, and in terms of the delay caused in delivering the service to clients, this level of involvement in individual cases must end. The LSC’s job is to manage the system, not to manage every case within it.
Even totemic projects such as CLACs and CLANs and Best Value Tendering need to be carefully considered. They require huge costs in order to deliver rather speculative benefits. With the current budgetary pressures, are these really more important than maintaining the current day to day service to clients?
I have been extolling to the profession the concept of the Business of Law – a central theme of my presidency - encouraging law firms to run efficiently and follow sound business principles. Many have risen to that challenge. Perhaps the LSC needs very speedily to adopt the same principles.

theTechnology
More than 10 years after Lord Woolf, in his report on access to civil justice, expressed his 'conviction that sensible investment in appropriate technology is fundamental to the future of our civil justice system' the possible abandonment of the Court Service's flagship proposals to introduce electronic filing and document management (EFDM) systems to the civil and family courts is depressing. It is also short-sighted.

The pace of technological change is accelerating and Lord Woolf's expectations for technology in the courts now seem as retrospectively modest as they are unfulfilled. It is easy to forget, to take just one example, that back in 1996 a good Pentium PC with an 800 Mb disc and running Windows 95 would have cost a law firm around £2,200! The world has changed. The courts have barely changed. In essence they are still hugely paper-based and relatively inefficient.
If the government is not prepared to make significant investment in the technological infrastructure and back-office processes of the courts now, the position can only get worse.
In the first place, a cutback in such essential infrastructure appears inconsistent with a proclaimed policy of fiscal stimulus to ameliorate recession. Secondly, the court system will suffer further relative decline both in relation to alternative jurisdictions and in relation to our rising expectations. The government knows this.
Civil Justice 2000 was subtitled 'A vision of the Civil Justice System in the Information Age'. It argued that 'for too long Government departments have lagged behind the private sector in the innovative and effective use of new technology'. It identified the impact of the internet on business and suggested that it was necessary to 'look ahead in order to plan and develop the future share of the justice system in the information age'. I agree. At a time when solicitors are embracing a range of new technologies to compete as effective and efficient businesses in the delivery of services to their clients we need the government to match its earlier vision and rhetoric with action. Now is not the time to cut much needed investment in the courts.

Virtual Courts
Virtual courts, one initiative where the courts have looked to implement new technology, unfortunately risks lowering the quality of justice in our courts.

We are extremely concerned about the potential for waste in the virtual courts pilot, a project led by the Office for Criminal Justice Reform (OCJR).
Planned for implementation in early 2009, it will require the kitting-out of 16 custody suites in London and Kent with video conferencing equipment to enable defendants to 'appear' at their first hearing in court.

There are enormous practical difficulties and additional costs that this new way of conducting court hearings, which will be extended to include out-of-hours work, will cause defence lawyers, which have only just adjusted to the post-Carter world of fixed fee cases to be dealt with in the one court centre, with no additional travel and waiting.

The Law Society also has concerns about the quality of the justice that will be delivered remotely, and we very much doubt that the supposed benefits - said to be savings arising from fewer defendants failing to appear and reduced police transport costs - will make the very conservative estimate of £8.7 million, as set out in the OCJR's business case, worthwhile.

While it is acknowledged that video technology is used to good effect in dealing with administrative and appeal hearings, here we are concerned with a person's first appearance after arrest, when issues such as release on bail are considered, and, increasingly, pleas are required to be entered, often when the person is not in possession of proper disclosure and may not have received any, or sufficient, legal advice.

We would politely suggest that before spending large amounts of money on this costly experiment, the fate of the 2002 Extended Court Sitting Hours Pilot, otherwise known as Night Courts, should be considered, and the virtual courts pilot dropped, or, possibly, confined to rural areas where there may well be advantages to all involved in the criminal justice system, not least the defendant.

Conclusion

The Law Society, and I am sure many other representative bodies in the legal profession, are ready to engage in constructive dialogue with the Ministry on the on-going budget cuts and state of our justice system. I made this clear in my letter to the Justice Secretary when news of the latest cut backs emerged.
The government must draw on the expertise of the profession and others with day-to-day knowledge of the working of the courts. We must all be united in defending the justice system.
Paul Marsh, President, Law Society of England & Wales