Legal Aid – some thoughts

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If you venture into the legal blogosphere right now you can see many erudite blogs about the Ministry of Justice’s proposed “reforms” of the legal aid system.

I’m taking to blogging for the first time to add my voice to the dissenters.

This is a difficult exercise. I am so incensed by the proposals and there are so many points to make that it is difficult to distil them down into any sensible article. I suppose the Powers That Be know that, as it helps them. If you can’t write your campaign slogan on a small yellow sticky note it’s going to be hard to win over the public.

The Consultation

In summary, the Ministry of Justice has unveiled a “consultation” on reforming legal aid,  mostly criminal legal aid. Other areas of practice are also hit, and some have already been hit hard in recent months – ask any family lawyer. The current consultation can be seen here. Responses are due by 4 June – every interested citizen, and certainly every criminal lawyer, should respond, and not feel limited by the questions. At the bottom of this article is a link to the petition, which everyone should sign.

In short form, which is not easy, the current proposals are as follows:

  1. Legally-aided criminal defendants will be deprived of the ability to choose their own solicitor. A defence representative will be allocated to them.
  2. Only providers (like solicitors’ firms, or more likely large corporations: Serco, G4S, Capita etc) who successfully bid for contracts, which run for three years initially, will be able to provide legal aid criminal advice and representation. They will succeed if, having satisfied pretty basic quality and delivery criteria, they bid the lowest price per unit of work.
  3. The majority of work would be paid per unit, i.e. one case. Bidding providers will set their own price in the auction, but the ceiling for such prices is a deduction of 17.5% from current average costs. The reality is that to be ensured of victory the bids will be much lower than this.
  4. In any given Criminal Justice System area (basically the counties, with some exceptions) the number of providers will be limited. In Nottinghamshire 6, in Lincolnshire 4, in Manchester 37, etc. Each provider gets an equal share of the available work, fixed and immovable. The number of providers (ie. firms) drops from 1,600 to a maximum of 400 but in reality more like 40 or so nationwide.
  5. The proposals cover all legal aid litigation work (i.e. the solicitor side of things) including in the Crown Court.
  6. There are significant cuts for other fees too, most notably advocacy fees in the Crown Court, and fees in Very High Cost Criminal Cases (VHCCs). These escape contracting, for the time being at least.

There is no discussion in the paper as to whether this model is the best way of going forward, or whether it is necessary at all. That has led me to put “consultation” in inverted commas because it seems to me that MOJ is not really interested in the answers.

If you want further confirmation of that, note that Chris Grayling, Secretary of State for Justice, has recently pronounced that the time for such exercises would be reduced, so instead of three months we get eight weeks. That might be fine if details were known in advance and only a small number of organisations needed to respond. It’s not adequate when the proposals were veiled until they were revealed to the press on the morning of the launch at the start of the consultation period. It’s not adequate when the proposals are so complex and need very careful analysis. It’s not adequate when it must be known to MOJ that many of the stakeholders who need to respond will need to analyse and convene special meetings with a number of very busy people in order to agree a corporate position.

Add to that that the questions asked in the consultation document don’t go to the heart of the issue:

  • Is there any other area in which MOJ spends money and in which it could be saved?
  • Is price competitive tendering going to save money, bearing in mind the cost of bringing it in?
  • What will the plans do to the justice system as a whole?
  • What are the costs associated with the plans which are not directly accountable to the MOJ departmental budget, e.g. miscarriages of justice, delays in the court system, redundancies in the legal sector, the closure of firms which were supported by crime but offered other services?
  • And the most basic question of all, namely do you agree that price competitive tendering is a suitable mechanism for rationing legal aid expenditure?

MOJ does not ask those questions. It would rather that people find it difficult or impossible to respond, and so fail to do so, and it doesn’t ask the above questions because it will not like, and therefore does not care about, the answers. (That doesn’t mean that you can’t give them the answers – if you do respond then feel free to object, and you should say so as often and in as many ways as possible.)

Be under no illusions. This is not an exercise in Government reaching out to citizens and asking for suggestions as to the best way forward. This is a rubber stamping exercise on decisions which have already been taken.

So what we have here is a failure to ask the basic questions, and instead asking about the details. To draw a rather bleak analogy (because that’s how I feel right now), this is the hangman asking the condemned as he steps onto the trapdoor not, “Would you prefer it if I don’t pull this lever?” but:

“Would Sir prefer a blue hood over his head, or maybe this nice yellow one?”

What will be the effects of these changes?

The proposals will all but destroy UK justice. Although our justice system is often criticised in the press, it should be remembered that our courts and our lawyers are regarded as some of the best in the World. We are an exemplar of how justice should be done. Our Government should be proud of the courts and what they achieve.

Unfortunately, if these proposals go through, that will no longer be the case.

Quality will no longer have a place

At present, the market regulates quality. In general, solicitors who provide a good service tend to be instructed more regularly by clients, and grow as a result. Barristers are equally market regulated. “You’re only as good as your last case” as the old adage goes.

The new system removes that. Quality is considered at a preliminary stage in the tendering process, and is likely to be largely a tick box exercise which the majority can comply with.

However, quality has no impact in the final bid round and the decision as to who gets the contract. Only the lowest bidders will succeed. A bid could be ten times the quality but if it is £1 too much the bid may fail.

It’s worse than that. Once the contracts are in place the market share is fixed and the volume of work will never exceed the allocated portion, so in an area with four providers they will each get one quarter of the cases. No more. No less. No matter what happens (pretty much). So there is no incentive at all to provide a good service. A Gold Standard of service, or a plastic toilet brush standard of service, will equate to the same thing. No provider will benefit from providing a great service, and no provider will be punished in the market for providing a poor service.

The only commercial necessity will be to provide a cheap service. That is inevitable when only the lowest bidders will succeed and there are built in cost ceilings but no floor, leading to deep cuts in what can realistically be provided. Quality for its own sake has no value.

As far as clients are concerned, this will manifest itself in a number of ways:

  • Face to face meetings with the lawyers involved will end, except perhaps at court. There will be no time to dedicate to discussing the case, ironing out the problems, or winning trust.
  • Preparation will be limited to the minimum. Material may not be read properly, videos may not be watched, experts may not be instructed.
  • Clients will ever increasingly be represented by in-house advocates. That’s the only way to make this profitable. This is not always a bad thing (I am such a person) but it is the death knell for the independent Bar, and with it all the skills necessary for the prosecution and defence of the most serious cases.

You might wonder why you should care. The answer is that the above issues have a knock-on effect at court. Cases which are not properly prepared have a way of going wrong. People are wrongly convicted, trials are lengthened or adjourned because it becomes apparent that there have been issues overlooked, cases which should have pleaded or cracked don’t do so because the discussions haven’t taken place or there is a lack of trust between lawyer and client. In the worst cases juries may have to be discharged, or convictions may be quashed because there is a doubt as to whether they were safe.

All of that adds up to wasted court time, and lives ruined. Victims have to undergo the ordeal of a trial more than once if the jury is discharged and the prosecution have to have a second go. They may be distressed by that, or may not turn up the second time leading to a potentially unjust acquittal. On the other side of the card, innocent people find themselves in prison, away from their families, with no job. Their families may end up having to claim benefits, or be made homeless. They may not be able to get a job on release, even if exonerated on appeal. They may develop depression and other disorders. Some may even commit suicide. There are huge costs whenever these sorts of things happen. These costs and wider impacts have not been taken into account.

And if the independent bar fails, our court system will be much the poorer and very serious criminals may escape justice.

The End of the High Street Solicitor

In towns up and down the country there are small or medium firms of solicitors which undertake a mix of work. In recent years they’ve been squeezed from all sides: increased regulation, competition from banks and large insurance firms, online competition, the collapse of the housing market.

All of those firms are small businesses employing a number of people. Even the very smallest usually involves at least one or two solicitors and an administrator or secretary.

For many these High Street firms are the face of the law in their local area. They provide face to face advice on all manner of issues, from divorces to conveyancing, boundary disputes to wills.

Many of these firms do criminal law too. Their specialists know the local area, know the police officers and courts (or at least they did before the local court was closed by MOJ last year), and above all know the client base.

All that knowledge is useful, as it means discussions with clients and others are informed. A witness cannot pull the wool over the lawyer’s eyes because of that knowledge, and neither can a client. A client can’t say “in that previous burglary I was only a lookout” because the solicitor knows otherwise from the last case. A client can’t say “I’ve never had a drug problem” because the solicitor knows about that too. The regular MO is known, as are their associates and hangouts. It all helps to smooth the path of justice and avoid problems which stem from a lack of knowledge.

That’s not all.

The steady flow of criminal work subsidises the other services offered. It is not necessarily the case that a firm can keep running with crime stripped out, especially with the other savage cuts elsewhere in the legal aid system.

These small to medium firms have next to no chance of successfully winning a contract. They can’t afford the expansion which may be required, or to operate with the low prices necessitated by the new arrangements.

If they don’t win a contract, they may have to make their criminal lawyers redundant. It doesn’t end there. The criminal secretaries and junior clerks also have to go. The agency which helps them with police stations goes as well. So do the numerous experts, enquiry agents and other providers.

Then the firm has to ask if the family lawyers who’d been just about hanging on after April’s cuts remain worthwhile. Probably not, so they and their team lose their jobs.

The personal injury lawyers have had a difficult time as well, with reductions in recoverable fees, and they may not be viable.

The conveyancing partner, struggling in a weak housing market, also faces difficulties.

Before long, the entire firm is not economically viable and the entire business folds. All its staff, lawyers and non-lawyers, lose their jobs and there is nowhere else for them to go because the majority of other local firms are in the same position. Their offices are vacated and become empty eyesores on the High Street.

For the client wanting a will drawn up or a house sold, they have no choice. Where previously they might have obtained an online quote but gone to their local solicitor who they can trust and visit face to face, they no longer have that option. It’s the large online company or nothing.

That lack of competition has an impact. Online providers can put their prices up because they no longer have effective competition on the High Street. Inevitably the few High Street firms remaining put their prices up too – with less income from other sources they have to pay their leases somehow.

If these changes come in you can expect to see the effective end of the High Street solicitor within two years or so.

This is not me being paranoid. The Government in its paper recognises that the minimum level of firms leaving the criminal sector is 1,200. That level assumes that there are no new entrants to the market, and no bidder makes a play for more than one area.

The reality of these plans is that upwards of 1,500 firms will leave that market, and many or even most will close their doors for the last time.

The End of the Criminal Bar

Meanwhile, the barristers suffer too. The High Street solicitors who sent their work have gone, so Chambers – already faced with increased volumes of work being covered in house – have to go cap in hand to the new contract providers.

Those providers have to be merciless to make their low bid worthwhile. They drive a hard bargain and counsel find themselves working as agents on fixed fees for a fraction of the actual cost. The work which went to local chambers goes to different, cheaper, sets. Quality is driven down and counsel also find it impossible to survive.

With the solicitors’ profession weakened after the divide and rule approach taken by the Government succeeded, the Bar is in a weak position to resist the onward extension of price competitive tendering. The Bar ends up having to scrape the barrel for the fees available once advocacy services have been put out to tender, or more likely subsumed into the litigator fee as part of a “one case one fee” arrangement.

The Government is clearly trying to divide the professions so that it isn’t faced with unified solicitors and barristers. That’s why Crown Court advocacy is presently excluded from contracting.

That’s not how it’ll stay. It will only be a short time before a one case one fee (OCOF, or presumably in this case Criminal One Case One Fee, er… COCOF!) arrangement comes in. The Bar would have no power to resist, the criminal solicitors would not assist because they’d all be redundant, and the final nail in the coffin of the independent Bar would be hammered home. Its loss would be mourned only by those few who still believe in the luxury of justice.

This would suit the large corporations who would now be running all aspects of the justice system. After all, at that stage you could be investigated by a G4S contractor, held in police cells and looked after by a G4S Civilian Detention Officer, conveyed to the Court cells and detained there by GeoAmey or G4S staff, defended by a corporate representative from SercoLegal or similar, and remanded or held after conviction in a prison run by Serco or G4S. If you’re released subject to an electronically monitored (tagged) curfew at any stage they’ll be monitoring that, and prosecute any breaches.

This is not good for justice. It is arguably not that great for shareholders of those big companies, until you realise that once the traditional supplier base of independent solicitors and barristers has been destroyed, they can put their prices up.

Victims and defendants, the Court and Judges, and society as a whole would be poorly served. The expertise of the solicitors, and of the Bar – particularly at the senior end – would be lost, and gone forever. The pool of advocates who make up the majority of our criminal judges would also be drained.

Within a few years our legal system would be but a pale shadow of its former self.

The End of Client Choice

Removing client choice is essential to the operation of the plans. Equal market share cannot be guaranteed if clients can choose where to go. We end up with a system of allocated lawyers foisted on unwilling clients.

This is a major constitutional change. It brings us closer to the system in some other jurisdictions, most notably the US, where lawyers are allocated to defendants. You need only read some of the harrowing tales about poorly defended cases in the US courts to know how well that works.

I have already referred to some of the advantages of a lawyer – client relationship, and the lack of any quality incentive.

With the end of client choice, work with the established criminals who make up a large proportion of the work of the courts will be much harder. At present an experienced and familiar lawyer, or even an unfamiliar one from a trusted firm, can make things run much more smoothly because the relationship enables often unpalatable advice to be given and accepted much more easily.

It is perhaps not appreciated by the majority that what happens in a criminal case is in the hands of the defendant. Criminal defendants are usually disadvantaged, they may not understand everything that happens, they may not necessarily want to co-operate with the process. They probably didn’t get into that situation by being sensible and right-thinking members of the public. Left to their own devices many will simply plead not guilty and deny everything even if the evidence is totally against them. Others may need a trial but have difficulty conveying their case to the court, or even to their lawyer. Some will refuse to talk or discuss at all until they can trust their team.

In the hands of good, trusted (chosen) lawyers, the number of trials is reduced because those who ought to plead guilty can do so trusting that it is the best thing to do, those for whom there is a sensible compromise plea can get into that situation as a result of the lawyers negotiating, and the trials are sharply focused on the right areas of dispute and therefore kept as short and easily manageable as possible.

These changes will lead to an increase in the number of trials, and an increase in the number of applications to vacate guilty pleas. That’s expensive but again has not been factored in.

The proposals give no credence to the advantages of the current system and do not recognise its benefits.

The End of Justice

Make no mistake, these proposals are not about getting a better deal for the taxpayer.

If this was an open debate about how to save money in the public interest the MOJ could have come to those who work in the system – from the police all the way through the CPS, Probation, the Courts, and defence solicitors and barristers, and asked what the way forward should be. With a good faith approach there would have been a good faith response and many good suggestions would have been made.

There has been no such approach, and the matter is apparently not up for debate now.

Instead, MOJ has spent taxpayers’ money negatively briefing the media about “fat cat lawyers”, knowing that these claims are untrue or misleading, and has come up with proposals which will destroy the present justice system, lead to many delays in the court system and will fail victims, defendants, witnesses and their families, and will destroy both sides of the legal professions. Many thousands of hardworking people will lose their jobs, and valuable local businesses will shut down.

I know that it’s hard to inspire any sympathy for legal aid lawyers, or lawyers of any kind. The Secretary of State for Justice pretty much says so in his recent consultation paper when he observes that the system has lost much of its credibility with the public. But of course the only reason the system lacks credibility is because elected politicians have failed to accept the responsibility for defending this valuable system and confronting misunderstandings and misinformation. They have instead compounded those issues.

This is, of course, deeply ironic, because neither politicians nor the more popular press are renowned either for their morals or integrity, nor are they known in some cases for a  lack of a tendency to line their own pockets at public expense (and indeed to use the services of criminal lawyers), yet for some reason much of the population are prepared to trust their judgement on this issue.

This is deeply worrying. The rule of law is a fundamental feature of a democratic society; the courts, and those who work in or serving them, should be respected.

It is a basic responsibility, indeed duty, of any sensible elected politician, and particularly a Lord Chancellor with the role of Secretary of State for Justice, to properly educate the public about the importance of the legal system, and to respect and uphold its traditions.

What we have, however, is repeated denigration of the system and its practioners. We have respect for human rights undermined by elected politicians misrepresenting decisions of the courts (see Catgate for example), we have elected politicians using criminal cases in support of wholly different policy agendas without regard for what the courts actually said (the recent Philpott case), we have lawyers repeatedly portrayed as “fat cats” when the statistics themselves are misleading and in any event the small sample used is not in any way representative.

All of this is calculated to make it more difficult for lawyers who work within the system to win the public over. It is calculated to make sure that justice is understood only as “criminals going to prison” and never “person falsely accused acquitted”, or even that most unpalatable “the Prosecution failed to prove their case so the right verdict was not guilty, whatever anyone suspected”. Defence lawyers are those who sponge off the system being paid extortionate amounts of money to get people off on technicalities.

This forgets that legal aid is important because it ensures that the most vulnerable in society are legally represented. It contributes to the rule of law and the right of everyone to have a fair trial. Even those technical points taken by the lawyers have a social and legal utility – they develop and clarify the law and ensure that justice is done within the law and not outside its confines.

The fairness of a country’s justice system is a good barometer for the freedom of that society. Democracy is founded on the rule of law. Without the rule of law it becomes rule of the powerful and unscrupulous. The kinds of societies in which people can be imprisoned without fair trials and without evidence being required are not the sorts of societies in which most of us want to live.

For a justice system based on adversarial trials, where each side presents its case and tests that of the other in order to provide the court with an opportunity to find the truth, you need both sides to be roughly equally balanced. Both sides need to be competent and able to operate.

Once you have a situation in which one side is more powerful than the other, or one side is better represented than the other, or even in which one side is somehow regarded as less worthy than the other, the adversarial system no longer works properly.

And that is a tragedy for us all.

What can be done?

For a start, don’t accept everything you read in the newspapers about this. Much of it may be wrong.

If you disagree with the plans, write to your MP and tell them. You can find out who your MP is here.

Sign the petition: Save UK Justice.

Respond to the consultation and tell them you fundamentally disagree. Answer the unasked questions.

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56 comments

  1. Andrew Bishop

    Excellent piece. Really good analysis. Just two points:-
    1. You say market share and volume are fixed. That isn’t quite right. Market share is fixed but there is no guarantee of volume. The contract pays per case. The figures are a couple of years out of date and arrests have generally diminished (overuse of cautions, police budgetry constraints etc). So, it is even worse. Firm bids on basis of Volume X, police arrests/Government policy means arrests go down and they get volume Y.

    2. One point I’m not sure you made, but forgive me if I missed it, is that a reason this is disastrous for the bar is that the fewer, larger providers will undoubtedly keep more advocacy work in house. The increased volumes and guaranteed market share will allow them to do employ in house advocates, solicitors or barristers whereas at present most firms are not big enough to do so.

    These proposals are disastrous for Solicitors and the Bar as you explain so persuasively. QASA is a sideshow compared to the PCT consultation.

    I hope the bar joins the hundreds of solicitors already signed up to the joint CLSA/LCCSA/LAPG/CBA meeting at Friends Meeting House on 22/5. http://www.clsa.co.uk/justiceforsale for details,

    Andrew Bishop
    Bishop and Light Solicitors

    • cjeyes2012

      Thank you for your feedback. I agree with the points you made.

      In such a complex subject I was conscious of not wishing to over-complicate things, but certainly I agree that prices and market share will be fixed, but there is not (and never could be) any guarantee of volume (that was a slip of mine which I have now corrected). Nor is there anything a provider can do to try to increase volume – because share is fixed you can’t advertise or attract referrals. It’s a pretty disasterous business model, and one which drives quality right to the bottom – unaffordable and unincentivised.

      In respect of your second point, I had been hoping that I had made it, but perhaps not as clearly as I ought to have done. I would actually say that the new larger providers will be more or less required to keep advocacy in-house, as the figures for the rest of the services they would provide will be so dismal. The only way to increase income is to take the advocacy as well. That will finish the Bar. If they think it has been bad then this will be far worse.

      I’m fully supportive of the battle over QASA and wear my No badge with pride. However, this struggle is about the survival of both our professions, and access to quality justice for all. We must now fight side by side (metaphorically speaking I hope) for what we believe in, for the sake of all of those who find themselves having to deal with the justice system in the future, in whatever capacity.

      Thanks for the link to the meeting. There are over 1,000 places and I hope they’ll all be taken.

  2. Joe

    Reforms that hit the innocent and the poor hardest, the end of independent representation, the plunder of small businesses – disgraceful
    Only money hungry juggernaut’s reminiscent of the public sector need bother applying for contacts

  3. Andrew Bishop

    272 places gone for 22/5 meeting after 1 week which is pretty good going. Only 14 barristers booked on which I find a little surprising as it is jointly arranged with CBA. as you say 1,000 places.

    Andrew Bishop

  4. PK

    Andrew, I think you’ll find two reasons for the slow uptake by barristers; 1. The CBA email with the link to book places only went out yesterday. 2. The timing of the meeting means anyone booking a place is going to risk being unable to attend due to being in court. I have booked my place in the hope a trial I will be in goes short.

    • cjeyes2012

      True. I hope that many judges would, exceptionally, allow counsel the time to attend. These are challenging times and this is not an everyday struggle. The judiciary are probably behind us in large measure. They know the reality of how the courts would become.

      • Andrew Bishop

        I do understand that it is more difficult for barristers (and HCAs). For Counsel it may mean giving up a trial brief. We did consider various time and date options and all have pros and cons. \Some reluctan to give up weekends and an evening meeting can make it difficult for those travelling a long way. I’ll keep you updated on numbers. Over 1/4 of tickets sold already but may be some still available close to the date.

  5. CALE 2013

    **URGENT LEGAL AID CONSULTATION MEETING NEWCASTLE 17th APRIL 2013**

    TO ALL MEMBERS OF NEWCASTLE LAW SOCIETY
    ARE YOU AWARE OF THIS MEETING?

    If you can attend please send a quick reply to this e mail address so we can see who is planning on attending. Thank you…

    The MOJ published its latest consultation entitled Transforming Legal Aid on 9th April 2013. A meeting has been arranged for all solicitors in our area who stand to be affected by the changes proposed (which include price competitive tendering, further changes to scope and reductions in fees) to discuss a response. The meeting will take place on:

    Wednesday 17th April 2013
    at
    Lecture Theatre 002 (University of Northumbria Law School)
    City Campus East
    University of Northumbria
    Newcastle upon Tyne
    NE1 8ST

    Time: 5.30pm

    We would like every firm affected to endeavour to send a representative.
    You can obtain a copy of the consultation paper, which you may wish to bring to the meeting by clicking on the link below. Please feel free to pass this e mail on to any colleagues that may be interested. Time is short and we would like as many people as possible to know about the meeting. Want more information? Contact Newcastle Law Society 0191 2325654 or send an email to this address.

    MOJ Consultation Paper – link below
    http://www.consult.justice.gov.uk/digital-communications/transforming-legal-aid

    National Law Society Consultation on Alternatives to PCT
    http://www.emailhosts.com/ct/ctcount.php?key=015084470111975300024980

    Map of Northumbria University Campus
    http://www.northumbria.ac.uk/brochure/visit/campus_branch/ncle_cmp/city_campus/

    Regards,

    Kate Goodings
    Director of Operations
    Newcastle upon Tyne Law Society

  6. Pingback: Morning Round-Up: Wednesday 17 April | Legal Cheek
  7. PK

    17:15 – 17:30 would have been a better start time. I’m sure people would still be able to travel home as it wouldn’t finish that late. My trial is an 8 to 10 day estimate starting the week before. Not exactly a case I could afford not to do. Hopefully judges will be understanding and not sit that afternoon. It is in my view going to be a decisive meeting and important that we have a good mix of barristers and solicitors.

  8. Marie

    Why is everyone suggestion petitions… Writing letters… Going to meetings…. Why has no one suggested a March???? You know .. The good old “what do we want? When do we want it..” Type March! Is there a reason for this?

    • cjeyes2012

      Thanks for your comment Marie. I’m just a humble practitioner so I can’t claim responsibility for organising the campaign.

      What I do know is that a march has been pencilled in for 30 June (see the Crimeline protest page for more information). These things take a lot of organising and if we’re doing it, it must be done right, with the right message and everyone behind it. Enough people have to turn up. Firms have to close, trials have to go part-heard. The police have to be consulted. There have to be coaches. Even boring things like insurance. It doesn’t happen overnight.

      In the meantime do everything else you can. See the links on the aforementioned page for ideas.

      This is a struggle for all of us. All of us have a duty to get involved and be heard. I regard it as implicit in the Code of Conduct that I do so.

      It is important to deal with this on all fronts. Media. Information for the public. Political lobbying. Protest. If necessary and lawful, direct action.

      It is too early to rule anything in or out. Hopefully HMG may be listening.

      • Amanda Naughton

        Hi I am organising the protest provisional date is 30th June 2013 at 1pm (TBC) From the Royal Courts of Justice to Number 10. I am calling on all Defence Solicitors, Support Staff, Members of the Bar, Court Staff absolutely everyone involved in the Administration of Justice Nationwide should attend. We must make a stand against this, NOW before it is too late!!

      • cjeyes2012

        Amanda – good work. I hope it is a success. I sent my ideas for such an event through to the CBA last week.

        I know how much work there is in doing such things to let me know if I can help in any way. Remember too that you need to have all your media sorted out beforehand so that the message is not lost.

  9. A prosecutor

    This is really a great piece, setting out the key issues extremely clearly. I find this proposal (+ reduced consultation period and very short timetable before proposed implementation) extremely worrying. Anyone doing defence work has my full support at the moment.

  10. Ian Fisher

    Thank you for an erudite and chillingly comprehensible analysis of the proposals. On the topic of “skimmers” taking over, however, I wonder whether this is especially likely. They are plainly all about profit. How profitable can these contracts be to operators who simply introduce an unnecessary layer of administration into the equation and then exist as gangmasters to a humbled and resentful professional workforce? Would they not also be massively reliant upon an “army” of lawyers with whom they would have no arrangement prior to submitting a bid? It may be that they would encourage suitably able and confident lawyers to go into energetic competition with them, and while a few leaner years for those brave souls might then ensue, when contracts came up for renewal, the skimmers might find revised terms insufficiently attractive to “go a 2nd round”

  11. JRM

    A very good piece that covers all the problems that will arise out of the governments policy. As a Bar student, who wants to practice in the legal aid sector, the situation is now more dire than it was when I started the course, and I knew the risks then.

    • cjeyes2012

      PK – striking could be an option but that is not my decision. Obviously any action has to be lawful and so far as possible compatible with the Code of Conduct. This is the difficulty as obviously we would never want to harm justice or our clients (whether defendants or the prosecution) – those are the very things we are protecting.

      However, we are being threatened with the nuclear option which will destroy our profession and everything we believe in. It is therefore only right that so far as tactics go, everything lawful is still on the table.

      If such a thing were to happen we would need everyone, in both professions, behind it. A partial strike would simply be divisive and would not achieve its aims.

      BTW, I don’t agree that marches do not change anything. I accept that Mr Grayling will not see a march and decide to resign, but there are other benefits. These include potential media exposure (entire Bar in full regalia on dignified march would be a sight to see, and as far as I’m aware the only time it has ever happened, so noteworthy in itself), the chance for participants to meet each other and hear from their leaders, and the feeling of togetherness and unity which those who are collectively facing adversity can get from one another.

      I wish the march every success, and I’m sure you do too.

      We have to do EVERYTHING lawful to resist this, don’t we?

      • J

        I’ve thought that rather than a strike, if we could find a way to replicate what court will be like after the changes: Only a few firms will get contracts and they will only be able to send one solicitor to court, maybe two for a big and busy court. Watch and see how the court runs with so few lawyers available. Maybe just have the duty solicitors who are present at court that day being the only solicitors there to give a feel for how it’s going to work, duty sols doing cheap / free agencies for everyone else. Ideally get the courts, judges and CPS on side to avoid any detriment to the client.

        At the end of the day I don’t want to see our protest actions harming our clients but really…how long are they going to be our clients for if we don’t protest. Short term costs, minimalising damage as much as possible for the defendants, for the long term gain of them still have a solicitor to go to in the future if they get in trouble again.

        Of course, there will always be the vultures who refuse to strike, swoop into court and hoover up all the defendants who are standing around, angry at the delays and not understanding the reason why the protest is for good reason. They’ll undermine the whole thing.

  12. Martyn Bowyer

    An excellent piece which is being shared by members of the Criminal Bar on Facebook.
    My experience is that members of the public are genuinely appalled when the facts are explained to them. Mike Turner QC and the CBA are doing a good job but I am underwhelmed by the Bar Council whose pronouncements on QASA sound half hearted. Morale in the robing rooms of the SE Circuit is at an all time low but I sense a steely resolution this time round. After all – we have nothing to lose!
    I also feel the press is slightly more sympathetic than we may think.
    If this is going to be defeated there really has to be a concerted and united public relations campaign.
    Some awkward questions to Grayling (along the lines of those posed in this blog) need to be asked by the few MPs who are (or were) also members of the independent bar.
    I also hope that every legitimate legal challenge by way of Judicial Review is mounted at the appropriate stage. I am pretty sure there will be a lot of high powered silks prepared to waive their fee.
    The judiciary are in a difficult position but I am yet to speak to a single judge who is not having nightmares about what is coming their way. They need to be more vocal. After all, they too, are independent.
    Martyn J Bowyer. 6 King’s Bench Walk, Temple.

  13. Jason Dunn-Shaw

    Disgusting that the Government will have allowed – indeed encouraged – students to complete law degrees and vocational training – amassing substantial debts – which they will now have no means of discharging. At the very least three years’ notice should have been given. This is an argument which may properly be made without attracting the fat-cat cat-call.

  14. sarah munro

    The Judges are terrified about the future, so too is any one who truly understands the implications of these changes. The Judges can not speak up or they will be in breach of contract but they, like the majority of the independent Criminal Bar and Solicitors, realise that this is going to be far-reaching and impact on our country forever. It is a lie to pretend to the public that this is all to save money and a misrepresentation that criminal lawyers earn vast sums of tax payers money. If we don’t speak up now and tell the public the truth about what is happening it will be too late. Already fewer crimes are being prosecuted, more criminals are being offered conditional cautions and cases are being pushed through the system as quickly as possible to save money. Where will it end?

  15. Paul Cross

    Excellent analysis. It seems to be almost inevitable that large corporations (some of whom have allegedly already been in discussion with the MOJ) will take up most, if not all of the new contracts because of their ability to secure them as loss leaders. As you point out, once the competition has been eliminated the prices will go up. An equal concern, however is that, having secured contracts the large corporations discover that there are no fat cats and that there is indeed no fat. If that happens they will fail to renew their contracts and there will be no-one else to carry out the work.

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  17. Luke Jones

    I recently (July 2012) Graduated with a Law Degree. I had hoped to train as a Criminal Barrister in several years time after teaching for two years. Since graduation, I have witnessed the Government warm up its armoury on parts of the public sector – flattening pensions, pay rises and progression routes, before calibrating the big guns and turning to the Teachers and decimating their pay scales and introducing a “starting minimum and maximum” and “fair” performance related pay, along with scrapping area based living allowances. Michael Gove even had the audacity to say that the majority of schools should be run like a business and be “profit focussed.” Good one Mike. I know the Criminal Bar was in dire straights, even when I started my studies, but the truth is I never thought that in three year times (and approaching £50,000 later!) there may be none of it left. Full stop.

    It seems to me the only stable and lucrative profession left to my skill-set is that of Politician…

    Alternatively, I could keep my moral compass intact and bugger off to Australia. There will be a brain drain of Huguenot proportions if this is allowed to continue any longer!

    Never has the “First they came” poem held so much meaning…

  18. Serge

    Just a quick one.. a high percentage of criminals are reoffenders. How are you going to convince the Jo Public that the ‘scum’ of society need ‘quality’ representation. Dont forget the government own the media so they can publish what they want about who gets represented and can slip in ‘fat cat lawyers’ to any publication they like.

  19. Samantha Hookway

    This is an excellent piece and one which I have forwarded to non-lawyers in our firm – as a ‘potted version’ that is easily understood.

  20. Matthew Scott

    Excellently explained. It is very important that the public gets to understand that what is at stake here is (1) The existence of local firms of solicitors & (2) The existence of the independent criminal bar. It is hard to see how either can survive if these proposals go through

  21. Quentin Neal

    If none of us bid that will at least cause a substantial delay.If we can stretch it out to the next election the new lot if left with a chaotic situation will drop the bvt.Grayling may have thought he can divide and rule but the proposals are so obtuse that he may have acheived the opposite of what he wanted ….A united legal profession!!

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  23. Mitch Cohen

    I can’timagine that any Solicitor, Barrister or HCA would disagree with this for a minute but surely the battle is to get it over to the public. The majority of “Daily Mail readers” will simply not believe what we say and, even if they do, they will not care! Their view (until their son or daughter gets caught with a spliff or happens to be standing in the wrong place at the wrong time or is charged with rape after a disasterous one night stand) will always be – “I’m not a criminal and ‘they’ deserve what they get. Why should ‘they’ have free or decent representation just to get off?”. This is quite apart from the general public belief that we are all “fat cats”. I told a friend recently what I got paid for covering a sentencing hearing in the Crown Court – he just simply refused to believe me!!!

  24. Christopher Stuart Ranson

    Surely the “nub” of the issue is “rule of law” v “cost of provision”

    From any point of view the end game is to maintain the former and all rights there under within acceptable cost provision.

    From the profession’s point of view the important point to make is that the proposals attack the citizen right to “fair hearing” (note I do not limit the right to “fair trial” or “contest”. It is the ability to get the “right outcome” that matters because if such is not achieved our belief in the rule of law and citizen’s right to fair hearing is undermined and a major constitutional change may occur.

    From the opposite point of view (the public), the problem is stated to be that the current system is too costly, and as no change has occurred over the past years to reduce the cost, then radical measures are called for to reduce the cost

    I suggest the MOJ has no intention to allow current costs to continue and as prior attempts have allegedly failed to reduce the cost, then by hook or by crook the same austerity cuts as applied in other areas of public expense must take place

    It will only be by public support and demand that nothing shall affect the fair hearing assumption that the proposals may be attacked. Only on that basis does “cost” enter the argument. The public will not be concerned about how much solicitors or barristers will lose – nor probably that there may be fewer of them. What might persuade them is the increased likelihood that each one, their partner or child, employee, employer friend or acquaintance will not get the fair hearing they deserve and likelihood of wrong outcome

    What may persuade the public that the proposals should not be supported is that they can be proved not only to affect the fair hearing principle but also will not reduce cost and may increase it

    The consequences of firm closure and loss of employment or reduced advocacy opportunity will not impact the public very much and the MOJ response will be that the large contract supplier principle will still provide the service – but without the multiple duplicated overhead of multiple firms. They have already breached the “fair hearing” principle by the way the family law legal aid budget has been attacked – and the public has not jumped up and down yet about that

    So … What is the answer?

    It must be to show that the idea of “bidding” is too expensive, is not fit for purpose and will not produce the intended result. This requires specific examples of how such bidding does not and can be seen not to have worked in any other area of public commissioning of services. There must be someone “out there” who can produce specific and concrete examples!

    The other part of the answer must be to identify the specific benefits of an alternate system. But what is that system? Reading the material what is being aimed at are 2 principles

    1) The need to reduce the overall cost of the whole system. Someone has come up with the suggestion of a minimum cost reduction of 17.5%. Apart from an arbitrary budget figure what is the basis of the requirement? In light of current criticisms by IMF that the austerity budget should be modified, it is at this point in the argument that loss of High Street firms and employees might be advanced to show the effects of the proposals but will not be a big argument in my view unless added to other stronger arguments about “a police state” and control of the legal profession and thereby the judiciary on top of the challenge of right of free speech and other arguments. If alternative proposals can both challenge the target figure reduction AND provide an alternative BETTER solution which can provide cost savings then such must be put forward in a coherent manner

    2) The easiest way to provide an alternative is to let market forces operate by the reduction of fixed fees but not changing the current supplier chain: í.e. set the fees upon proper analysis of what should be possible. The professions will not like this but those capable of adapting and attacking the overhead costs should be given the opportunity. Theoretically, this must drive quality and innovation up – simply to keep in the market and with ability to meet demand as the inefficient leave the market

    The real problem is how to identify basic cost per case in all its guises and how to use technology to reduce overhead.

    For the profession it seems that the biggest saving is in the automation of procedures and use of IT – but not keeping the multiple separate office duplication. At the end of the day perhaps it requires one overarching back office serving multiple firms (or indeed) individual advocates (who do all their own case assignment and receive reports electronically) and which provides data to firms or advocates etc as needed and which links to MOJ for recording of payments. Not wholly dissimilar from the proposals of vastly reducing the number of organisations with whom MOJ have to deal with (which is what seems to concern MOJ)

    The “downside” of fixed fee reduction is the fact that such are and remain at the “whim” of the then current Government – but it avoids a lot of the personal risk that firms or individuals face under a tendering scheme

    In summary

    Refute the argument that the current costs are too high or at least the proposed fee reduction too savage

    Clearly identify the risk of loss of “fair hearing” principle and freedom to challenge state prosecution of cases on the basis of historic freedoms and the absolute need to preserve effective independence of lawyers even if State paid

    Display with clear examples the faults of a tendering system, if implemented as currently

    Ensure Solicitors and Bar speak with one voice

    Identify clearly how the proposals are effectively making constitutional change

    Show what can be done which deals with the perceived problems

    Get the public “on side” by clear arguments showing how each one member of public may be affected and the dangers that lurk on attacks of general freedoms we have historically fought for and how other countries for proper reasons envy our systems and highlighting as many cases as possible from other jurisdictions as to dangers of the proposals

    Identify clearly how nothing like this has been tried anywhere else in the World and the risks it involves if adopted

    A final thought …. there is an implication in the proposals by MOJ to reduce the administrative cost of legal aid at the MOJ end. They want to remove the multiplicity of claiming and multiplicity of fee categories (hence reduction of no of areas and proposed providers per area based on a block (bid) fee. It may not be lawful for MOJ to pick and choose from the current provider list and such may be the underpinning of why competitive bidding has been brought up again. Forget the fee reduction issue it may be a desire to remove MOJ cost of administration – they sat on the sidelines to see how the LSC tried to deal with BVT keeping their powder dry until they secured control of the whole process but with determination of annihilating the Gvt beaurocratic overhead – or am I too cynical?

    Part retired Criminal Solicitor

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  26. Bob the Barrister

    I’m an especially sentimental person. As a criminal hack, I cannot afford to be. Yet I read this article and by the end of it I had tears in my eyes. Not for me and my career, but for the death of our honourable and dedicated profession (vocation?) and the death of a fair and decent system of justice that has been developed and fought for over almost a thousand years. A thousand years of careful evolution of the professions and the system will be dismantled FOREVER in a matter of months by a hatchet man who has never set foot in a courtroom in a professional capacity (though some might say he was lucky to avoid appearing in court as a defendant because of his MP’s expenses claim). He displays the wilful blindness and deafness and arrogance of the truly ignorant.

  27. FloTom

    There are many of us who don’t believe the English do receive justice in the English courts. However that is a different argument.

    Your article reminded on one of my favorite quotes from Richard Brinsley Sheridan.Maybe you would describe it as what justice will become under these proposals and what it is now.

    “Justice is not this halt and miserable object; it is not the ineffective bauble of an Indian pagod; it is not the portentous phantom of despair; it is not like any fabled monster, formed in the eclipse of reason, and found in some unhallowed grove of superstitious darkness and political dismay! No, my Lords, In the happy reverse of all this, I turn from the disgusting caricature to the real image! Justice I have now before me august and pure! The abstract idea of all that would be perfect in the spirits and the aspirings of men! – where the mind rises; where the heart expands, where the countenance is placid and benign; where her favourite attitude is to stoop to the unfortunate; to hear their cry and to help them; to rescue and relieve, to succour and save; majestic from its mercy; venerable, from its utility: uplifted, without pride; firm, without obduracy; beneficent in each preference; lovely, though in her frown.On that justice I rely; deliberate and sure, abstracted from all party purpose and political speculation; not on words, but on facts”

    • cjeyes2012

      Thank you for your comment. I think most of those working in the system believe that the courts strive to give all who appear before them equal justice. The English are no more advantaged or disadvantaged than any other group. Of course, that may not be the external perception. It is, however, the reality in most cases.

  28. Tony O' Grady

    Terrific piece. Measured forensic and superbly articulated but written with real passion and zeal. Shall be writing to my MP!

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  30. Stephen

    A very well written piece, very thought provoking and informative. Truly makes me worry about my hopes to become a criminal solicitor.

  31. carolinebradley62

    Thanks for this blog. It is working well. I’m actually paying a visit to my MP on Friday and I sent him a link to this blog. It provides a great deal of the information he news to know.

    Out of interest I thought I might just look at the MOJ’s past record in relation to the procurement process.
    Oh dear, oh dear oh dear. Could do better.

    I read the House of Commons Justice Committee 6th Report of Session on the Interpreting and Translation Services and the ALS contract.

    See below an extract, which I have amended as shown in brackets. It is taken from paragraphs 5 and 6 of the conclusions and recommendations:

    ‘Our evidence strongly suggests that the Ministry of Justice did not have a significant understanding of the complexities of court interpreting (advocacy) work prior to initiating the procurement of a new service. The competitive dialogue (consultation) process failed to produce a working model that would enable skilled, professional interpreters (advocates) to continue to service courts and tribunals. The consultation that was undertaken was limited because by the final stage…..the nature of the new arrangements had been largely determined and the important concerns that were being raised by the interpreter ( adversarial) community, and others, even if they were heard, were unheeded.

    ‘…We hope that lessons have been learned from this experience, and, given the amount of outsourcing the Department is to be engaged in, we seek further assurances of the Department’s capacity in this area and repeat our call for an independent review before any further major projects commence’.

    Is it me, or if you take out the bit about interpreters, have I just written the conclusion to the House of Commons Justice Committees 6th report on Transforming Legal Aid of 2014 ?

    Sadly I can find no evidence of an independent review, but do not be disheartened. The MOJ have undertaken a number of reviews themselves (see their response to the 6th Report dated April 2013). So that’s alright then!!!

    Interestingly, it also seems that additional costs to the interpreting service are now being born by Capita TI who is:

    ‘propping up the continuation of the agreement so the Departments savings are effectively being secured at the company’s expense’

    Good luck with that one Eddie !!!

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