Legal aid cuts: Do we spend more on legal aid than other countries?

16 November 2010 by

Updated | One of the many points of interest from yesterday’s announcement that legal aid is to be cut by £350m per year was the underlying justification, put by Ken Clarke in his announcement, that England and Wales spend more on legal aid than other countries.

The Justice Secretary said that “we currently have one of the most expensive legal aid systems in the world“. But where does this often-quoted statistic arise from?

In its consultation document, the MoJ quotes (at para 3.43) a report commissioned from the University of York into comparative international legal aid systems. The report, Efficiency and quality of justice European Commission for the Efficiency of Justice (CEPEJ); International comparison of publicly funded legal services and justice systems, was produced in October 2009 by Roger Bowles and Amanda Perry. It investigated the legal aid systems in Australia, Canada, France, Germany, Netherlands, New Zealand and Sweden and compared these to the system in England and Wales.

It is not clear why these countries were chosen, but it appears that they were picked by the Ministry of Justice, not the researchers (see footnote 1 on page 1). It may have been that these countries’ judicial systems were most directly comparable to England and Wales (page 5), or that those countries are known to have particularly generous welfare provision. In any event, the question is left unanswered. This is surprising given the obvious importance in comparative statistical studies of the choice of comparators.

The data covered the period from 2000/1 to 2006/7. The authors began with the significant caveat that “Making comparisons of international justice systems was complex due to significant differences in the methodology and reporting of data associated with justice systems“. There were two key barriers to such comparisons:

First, particularly in the federal systems such as Australia and Canada, there was sufficient variation even within single countries, at provincial level, to preclude this from being feasible within the time and space limits. Secondly, as regards the EU countries surveyed, the sources of comparative data were regarded as insufficiently robust to support much in the way of inferences.

The authors went on to give three examples of these problems:

For example, table 7.1 shown in this report quotes figures quoted from the European Sourcebook of Crime and Criminal Justice Systems (ESB, 2006). England and Wales data was for individuals cautioned, those prosecuted for summary offences, trials either way or indictable offences. This was considered the closest proxy for the ‘suspects’ data collected by other European countries. But it was not exactly the same. Similarly when reviewing the number of cases brought to the criminal courts relative to the crime rate in this table, there were methodological issues associated with the nature of the cases covered, particularly associated with the disposal of traffic offences. A third example related to the differing role of prosecutors and use of cautions, which differed in England and Wales compared to other countries.

These examples “illustrated the potential limitations of international comparison in these areas. Therefore all comparisons in this report should be treated with care as to their interpretation.” To that end, the report concluded (on page 36) that:

Making comparisons of international justice systems was complex due to significant differences in the methodology and reporting of data associated with justice systems. Therefore all comparisons in this report should be treated with care as to their interpretation. Additional analysis of data collection methodologies might have revealed alternative explanations for some of the differences found. However, this additional work was beyond the study remit.

But, despite these limitations, there was “no escaping” that legal aid in England and Wales was “significantly more costly” than elsewhere. There were various contributors to this situation, but the main ones were (note that this mirrors the MoJ’s basic analysis):

  • High volume of cases supported.
  • High expenditure per case.
  • High income ceiling on eligibility.
  • Wide (if narrower than previously) coverage of areas of law.
  • The adversarial legal tradition of a common law country.

Interestingly, the authors also concluded that

Although legal aid costs were unusually high in England & Wales the same did not apply to the overall costs of the Justice System. The CEPEJ Report data reported in table 7.2 suggested that spending on courts and public prosecution were comparatively low in England & Wales. This would imply that looking at legal aid expenditure in isolation risked missing important structural differences between justice systems.

Much has been made of the justice gap which may open following the withdrawal of legal aid in most civil cases. However, it is interesting and useful to consider the underlying rationale (in so far as there is one – the Guardian, amongst others has argued that a shrinking budget is the only driver) behind the cuts.

Considering the York University report – which appears to be the foundation of many of the MoJ proposals – if meaningful international comparisons can be made at all, it would be interesting to know what a truly worldwide study, rather than one limited to a few countries, would have concluded. Moreover, the point by the York authors that although legal aid is comparatively high, spending on the justice system as a whole is comparatively low, is also of interest and may support the conclusion by the chairman of the Bar of England and Wales that cuts in legal aid will lead to a contraction of justice. Put another way, with overall justice spending comparatively low, the system may not be robust enough to provide justice for those frozen out by the proposed legal aid reforms.

Update, 17 November 2010 – Richard Moorhead, professor of law at Cardiff University, has alerted me (via Twitter) to an excellent article he wrote last month on this topic, entitled Legal Aid – System Failure or Broken Law? The article argues that ”

those interested in access to justice have to move beyond seeing legal aid as the problem and look more fundamentally at the nature of law and legal institutions. We need to consider radical redesign of dispute resolution processes, not simply the tacking on of ADR and we should to consider radical simplification and codification of substantive law.

He asks why our legal aid system is more generous than any other country, and answers that there are more cases:

Put simply we have more cases, particularly in crime. As a country we report more crime to the police and they interview more suspects, prosecute more accused, convict more defendants and imprison more convicts. This has a significant impact on the number of cases and the work that needs to be done on those cases. On the civil side, divorce rates are higher here impacting significantly on the number of family cases.

Ultimately he argues for a “radical simplification” of our law, “changed” rather than “alternative” dispute resolution and introducing a “polluter pays” principle where sectors which generate litigation – such as business and government – pay for this themselves rather than externalising the costs.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:


  1. Peter Soar says:

    When I edited The New International Directory of Legal Aid for the International Bar Association I reviewed replies to a questionnaire from some 80 jurisdictions. I had approached twice that number and received 80 completed forms.
    I sympathise with the authors of this Report about the difficulty of obtaining information and the near impossibility of comparing the results from different jurisdictions.
    The impression I formed was that countries got what they paid for. In terms of eligibility, access and scope there were wide fluctuations. I was left with the impression that if a country spent £3 per head it got an inferior coverage. The authors pont out the problems of obtaining information from Australia with its federal system and the variations between states; they should have tried the United States.
    One arrangement which I have not seen mentioned elsewhere is that in some partes of the States there is an obligation to perform a fixed amount of Pro Bono work – one figure was $300 a year – or, you could just pay $300 to a state legal aid fund.
    The Coalition Government is on a dangerous course; legal aid underpins the rule of law, not only in criminal matters but in the whole field. There would be a downward spiral because those firms of solicitors with a large legal aid practice will be forced to reduce the numbers of lawyers they employ; skills will be llost which cannot easily be replaced.
    Legal Aid needs Champions.

  2. This is an excellent post. The key point is the point about prosecution and court costs.

    I am a member of the International Legal Aid Group. This is a group of senior legal aid policy makers and academics which works on legal aid issues. If I was looking for countries to compare against England and Wales to see which countries might spend as much as us I’d have picked Scotland and the Netherlands.

    1. Peter Soar says:

      Dear Richard Moorhead

      Glad to see your blog; is there some way I can keep up with the work of your group? I was a founder member, and for some years, chair of the Legal Aid Practitioners Group, ran my own legal aid practice and now fume in impotent rage at much that is happening. A copy of my ‘Legal Aid Needs Champions’ pamphlet can be downloaded free from

      Peter Soar

  3. Jane Lambert says:

    Got to nail this nonsense before it is trotted out by canvassers on the doorstep.

Comments are closed.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: