Editorial: Move on legal aid report may prove costly

Opinion

Last Friday, Dame Margaret Bazley produced her damning report on criminal legal aid. By Monday Justice Minister Simon Power had obtained the resignations of most of the administering board, the Legal Services Agency, and the Government decided that day to shut it down. We are not used to such dispatch.

Certainly the Bazley report warranted it. Dame Margaret presented an indictment of a system corrupted by lawyers defrauding legal aid with unnecessary work and delays, charging clients illegal "top up" fees, providing poor service such as failing to read pre-sentence reports, and paying "back-handers" to duty solicitors for referrals on legal aid.

She found the Legal Aid Agency reluctant to use its statutory discretion, overly protective of lawyers who provide legal aid, not in control of its costs and "paralysed" in its dealings with lawyers.

But reports just as damning of other public agencies have not produced such decisive action as Mr Power displayed on Monday. The Auditor-General's report into the Corrections Department's handling of parole springs to mind. After receiving it in February, the Corrections Minister, Judith Collins, pointedly refused to express confidence in the department head, Barry Matthews, who declined to resign.

Since departmental heads are protected by public service employment, the most the minister could do was order another investigation, this time by State Services Commissioner Iain Rennie, who, predictably, found nobody to blame for the deficiencies in parole that had enabled Graeme Burton to go on a murderous rampage.

So while Mr Power deserves the utmost credit for a quick and decisive response, he was helped by the fact that public service job protection does not extend to the statutory board that ran legal aid. It has gone and good riddance.

But now its functions are to be brought into the Justice Department, in line with Dame Margaret's advice. That means that should nothing improve in the administration of legal aid a future inquiry might not bring such instant accountability. Those responsible will be protected by public service employment.

It is not clear why Dame Margaret and Mr Power think the department can keep a tighter rein on criminal lawyers who work on legal aid. Her report says the agency "struggled" outside the mainstream of government "to keep abreast of trends and developments".

Individual grants of legal aid must be made independently of the state and she suggests the necessary independence could be vested in a statutory officer within the department.

Her desire to bring legal aid under the department's wing seems to be part of a different role she envisages for it. "The legal aid system can no longer focus on legal representation one case at a time," she writes. "It needs to focus on helping people resolve their problems before they progress further into the justice system."

It must, "anticipate and meet legal needs through a variety of means, not just legal representation. It must be integrated with community-based information and advice services." It must be "strongly linked into government agencies and non-governmental organisations throughout the justice and social sectors".

What does all of that mean? Criminal legal aid is for a defined purpose: ensuring nobody is convicted of a crime for want of legal representation. If this purpose is going to be submerged in a social service, the implications need much more discussion.

The minister's decisive action is refreshing, but in his haste he might have surrendered criminal legal aid to a larger and more costly proposition.