Those who follow my posts on Twitter or Facebook will have seen that I, with many other people, am hugely disappointed with the actions of the Law Society this week. In this post I will try to set out why, and where we should go from here.
Where we were
The last seven days have been truly momentous. Just over a week ago the Backbench debate was held on the floor of the House of Commons. It was a debate that Her Majesty’s Government had not wanted to take place. However, democracy prevailed and a number of MPs from all parties used the time allocated to backbenchers to secure proper debate of the proposals for legal aid.
The striking thing about that debate was the number of MPs from all parties who spoke powerfully and eloquently in favour of the need for access to justice, and in total opposition to many aspects of the Transforming Legal Aid proposals. One significant thing to come out of the debate was the offer of an Opposition Day for there to be a more comprehensive debate with a division of the House.
Bearing in mind that by that stage the political reality was that the Labour Party was fully against the Government plans, the Liberal Democrats had also come out against it at a very senior level (Nick Clegg expressed doubts, the Deputy Leader opposed them vigorously, and so did the Party’s President), and many Conservative MPs were greatly concerned, there must have been very significant pressure on the MOJ for there to be a rethink. The appearance was that if there was a vote in the House, the Government would have faced a split in the Coalition, rebellion from several of its own backbenchers, and it would in all probability have been defeated.
Then on Friday, the #saveUKjustice e-petition passed the symbolic 100,000 signature mark. Whilst technically this merely means that there can be further pressure on the Backbench Business Committee to hold another debate, it is still a hugely important milestone. I doubt that the Government thought that lawyers would be able to gather enough support from the public to reach that level.
Added to all that is the fact that in the preceding weeks there had been hundreds of blog articles and newspaper reports highlighting the issues and raising profile, and several normally loyal newspapers had come out in support of the lawyers’ campaign.
The response to the Consultation, too, was totally unprecedented. 16,000 or more responses, totally united in opposition, all the way from the President of the Supreme Court, through the senior judiciary in the Judicial Executive Board (headed by the Lord Chief Justice), the Crown Court judges and Magistrates, all the professional lawyers’ organisations and a host of charities, representative bodies, and individuals.
Against this is a backdrop of continued and repeated failure in Government contracting exercises, with the interpreter shambles bringing the idiocy of Government actions into sharp focus, as expressed passionately in the debate the previous week. Sir Alan Beith MP described the potential for a “multiple train crash” if the process of reforming legal aid followed the same path as other contracting exercises.
That in a period of 14 days the various Justice Ministers had to face hostile questioning from MPs and Committees on no less than three occasions must have made this a very difficult period.
The climax of all this was to be the appearance of The Lord Chancellor before the Justice Select Committee. He will have been expecting a truly bruising and uncomfortable session in which cross-party MPs, having heard evidence from lawyers on 11 June, asked him detailed questions about his Department’s plans.
We had the Government on the ropes. They had lost most of the arguments. Any attempt to push the preferred PCT option through would have looked totally unreasonable and would have been politically unacceptable.
The will on the part of the professions was there to resist these changes. The mood is that we have had enough. We provide an enormously valuable public service. We often do it unpaid, late at night. The extra unpaid hours keep the system moving. Without our efforts there is no system. It depends on us.
We have in the last few weeks managed to convince a large section of the public, most of the media, and many politicians of the merits of our arguments. If it had come to industrial action of some kind our position could be understood and the impact would be enormously powerful and felt very quickly.
This is a battle which can be won. We were winning hands down. I doubt that MOJ had any idea at all that that would be the case. No doubt they thought the public would buy the fat cat argument and the proposals would pass unnoticed or with indifference. How wrong they were!
It was, therefore, particularly galling to see that on Monday of this week the Law Society chose to reveal its hand. It broke ranks from the unified professions, and in the perception of many of its members – I would stick my neck out and say the vast majority of rank and file criminal solicitors – offered Mr Grayling a way out.
The Law Society plan says nothing at all to resist the cuts the Government wishes to impose. Implicitly it accepts them. It simply says that they will be imposed and suggests ways in which firms might adapt. Whilst the Bar have been proposing ways in which the Government can save money and improve the efficiency of the system at the same time without affecting legal aid, the Law Society plan accepts the Government’s case.
The Society would dispute this, but the plans very firmly benefit larger providers over the smaller ones. There is no acceptance that in many cases smaller providers are more efficient and more adaptable than the larger ones, nor any express recognition or regret that hundreds of firms will be forced to close by their intervention, and thousands of duty solicitors will face redundancy or pay cuts. It is no coincidence that the Big Firms Group were extensively involved in drafting and approving the proposals. The plans benefit the owners of big firms to a hugely disproportionate extent – they benefit from a contraction of the market as smaller firms are forced to sell their practices to the larger operators, or close altogether, and they benefit from the change to the duty solicitor rules, enabling them to reduce their costs base by sacking or demoting many expensive duty solicitors. In some cases this variety of market consolidation could result in less firms in a given area than envisaged under Mr Grayling’s plan.
In their recent attempts to spin their way out of this crisis, the great and the good of the Law Society have denied this. They say that the proposals, if accepted, would protect solicitors from the threat of price competition, that efforts are being made to ease the transition to the new system, that the proposals had been discussed with a wide variety of representative groups, and that there has been no agreement to cuts.
I disagree. The Law Society position throughout this campaign has been to concede that the Government has to, and will, make cuts. Where the Bar has said there need be no cuts because equivalent amounts or larger could be saved or gained from tackling inefficiencies in the system, and the real cost drivers in the CJS, the Law Society just accepted the austerity agenda without ever once challenging it. They were of the view that the Government would not listen to anything else.
To see the damage it is only necessary to look at the opening remarks of Mr Grayling before the Justice Committee. What he said was:
[The Law Society] have said that they accept that we face a very large financial challenge, and they have also accepted the need for consolidation of their sector. They have submitted to us a very interesting proposal as a possible alternative model, which still contracts the marketplace, and we have said we will engage in constructive discussion with them about that.
*These remarks are taken from the as yet uncorrected transcript of the hearing before the JSC.
Mr Grayling then went on to make unfavourable comparisons with the position adopted by the Bar. He portrayed the Bar as unconstructive, and ungrateful because he could have introduced “one case one fee” but had not. Solicitors good, barristers bad.
There have apparently been a number of meetings between the Law Society and the MOJ. It was reported on Twitter that following the JSC hearing the MOJ officials went straight back to Chancery Lane.
So in one fell swoop the Law Society managed to defuse the JSC hearing for Mr Grayling, make it more difficult to argue that cuts are unjustified, deprive the public of the opportunity of having the criminal justice system fully reviewed to remove inefficiencies, divide the Bar from the solicitors, alienate the majority of their members, take the wind out of the #saveukjustice campaign, and divide their members between those who support their proposals (big firms) and everyone else.
Of course, I am not surprised. I knew the Law Society was the weak link. That’s why I penned an open letter to them at the start of this campaign. Their thinking was clear from the tone of their campaigning pack – the first few pages of which make the Government’s case for austerity, rather than make the case for hardworking and dedicated legal aid lawyers – and their response to my open letter was totally defeatist. They would of course say “realistic”.
Pessimists will always say that they are realistic and that those who do not accept their bleak assessment are dreamers. If the “realists” had had their way humankind would still be living in caves. Women would never have got the vote. Nelson Mandela would still be in prison. The Berlin Wall would still be standing.
It is the passion, vision and courage of those who dare to think differently that drives progress. It is the determination of those who do not accept the conventional wisdom that changes the course of history. Here it has been the efforts of a thousand individual lawyers and others that has changed the political reality: politicians got on board and scrutinised the proposals because so many people wrote to them to express their concern, passionately but reasonably. The media got the story because so many people got in touch with them. If I might take a little credit, the first post on this blog shaped the campaign and led to the first national newspaper coverage of this issue. My individual effort counted. The effort of Rachel Bentley in starting the petition counted. The work of everyone who has taken part in the campaign has made a difference. Look at what we can achieve when we work together!
All of that was lost on the Law Society. It is as if the past months never happened. Their stance has not changed since the initial days of the campaign. In spite of all the progress they still think that Mr Grayling could impose his preferred version of PCT because “there is the political will to do so” (In other words because they had a meeting with him and he said he would.)
Why this is wrong
This is wrong. It is wrong because it accepts arguments which in truth have no merit. It is wrong because it allows the system to carry on as inefficiently as ever yet saddles the hardworking lawyers with the entirety of the cost. It is wrong because larger firms are not always better and choice for the public will be diminished. It is wrong because it is detrimental to individual solicitors who have worked hard to achieve their qualifications, only to find their value diminished to benefit big business. It is wrong because solicitors who built up businesses serving their local community will find themselves forced from above to alter the way they provide those services, or even to close down altogether. It is wrong because they have made it easier rather than harder for Mr Grayling to get his own way.
It is also wrong to think that Mr Grayling could act as he threatened. Faced with a passionately well-argued campaign supported by pretty much everyone with any knowledge, and faced with opposition both from within and without the Coalition, my view is that Mr Grayling would have found a way to shelve the more controversial proposals. He conceded on choice not because the Law Society capitulated, but because he had lost the argument and he knew it. With time there would have been other concessions. Even if cuts ultimately had been imposed, they would have cut less deeply.
Finally, it is wrong because there was no mandate whatsoever to make these proposals. Here the Society was going to Government and conceding that (a) cuts are required, in other words that solicitors are paid too much, and (b) that there are too many firms and a large number should be closed or otherwise removed.
You only have to look at comments on recent articles on the Law Society Gazette about this issue to see how little this view is supported.
Where to now?
I wrote to my MP, Patrick Mercer OBE MP, some time ago.
Yesterday I received what can only be regarded as a standard reply, trotting out all the usual stuff and not dealing with any of the specifics of what I said at all.
So I thought I’d have another go.
My letter is nowhere near as eloquent as that written by Steven Bird (who incidentally was the first person to interview me for a job, years ago), but this is what I said. Hopefully Mr Mercer will be prepared to meet to discuss.
Dear Mr Mercer,
Many thanks for your letter of 13 May 2013. I have to confess to being rather disappointed with your reply. The reason for my disappointment is not so much that you did not agree with me, but more that having taken almost a month to respond you did not in fact address any of the specific issues I raised, and provided what I know is a standard response given by the Ministry of Justice.
Perhaps I am a little idealistic, but I believe that, although we have a system of party politics in this country, you are my local elected representative and should listen and respond to my individual concerns. What I raised with you was a matter of very great public importance, which is not being properly debated, but also something of very great personal importance which will affect quite a number of your constituents.
I will set out some additional thoughts below in a little more detail, but I wonder whether it would be possible to meet to discuss this? It is too important to leave to correspondence. I will be in London on 22 May and wonder if you might have time around lunchtime then?
You note that you agree with the Justice Secretary that we have an excellent tradition of legal aid and one of the best legal professions in the world. That rather begs the question why you propose to destroy it. You will not find a lawyer in the country, or indeed anyone who works within or is closely acquainted with the criminal justice system, who believes that anything resembling a high quality justice system will survive after these proposals have been implemented.
The quoted figure of £220 million for reduction has been arrived at arbitrarily, and has moreover been arrived at without regard to the extensive cuts already made in recent years. The MOJ itself is unable to say what the impact of previous cuts is, as the figures are not yet out. The consultation document itself is based on figures from 2010-2011, and leaves out of account both reductions in fees and reductions in volumes of work. The Legal Aid Authority (recently renamed and rebranded at, no doubt, enormous cost) has produced its annual figures for this year, suggesting that certainly £168 million has already been saved.
All lawyers could tell you ways in which money could be made or money could be saved. Michael Turner QC, Chair of the Criminal Bar Association, has a clear plan which would potentially make money for HM Government, but Mr Grayling refuses even to meet with him.
A clear example of waste within the system can be found in something which happened in my own professional practice just last week:
I undertook a trial at Lincoln Crown Court with a Lithuanian defendant accused of theft. The trial was capable of being dealt with in a single day, quite easily. The time estimate was known and the date had been set in November to allow a fixed hearing, bearing in mind the need for an interpreter.
However, on the first day of the trial we found we were listed behind another trial, which subsequently resolved by way of a guilty plea. My case did not get on until after 14:30 so by the end of the first day we were only part way through the prosecution evidence. The interpreter, paid by the minute, and myself, on a graduated fee, spent most of this day waiting for our case to get on. Had the case started at 10:00 promptly we would have reached the same point by about 12:00 noon as we had reached by the end of the day.
On the second day it became apparent that, although I had by 13:00 the previous day asked Listing to ensure an interpreter would be booked for the unexpected second day, no interpreter was available. The newly contracted interpreting service had failed to find anyone available to cover the hearing and the interpreter used the previous day was committed to a prior booking in Wales. All involved in the case waited until 11:30 to see whether someone could be located, but in the event it was not possible. The case was therefore adjourned until the following day. My time, the prosecutor’s time, the jury’s time, and the court’s time was entirely wasted. The Judge had a list of other work to do but that was not scheduled even to start until 12:00 noon because our trial had been put in that slot. Incidentally, as a result of the previous fee cuts I received no additional payment for this second day.
On the third day we did not get a clean start because the interpreter did not arrive until 10:20, but once we managed to get going we were able to get the jury out by 12:00 noon, and at 14:08 they returned and unanimously found my client Not Guilty of both counts on the indictment. Under the fee structure there was a modest additional payment for the third day in court.
Thus, because (a) the court had in its wisdom listed this case behind another, (b) had not booked an interpreter in the event the case overran its slot, and (c) because no interpreter was available for the second day, a case which could easily have been dealt with in the space of a single day took three days to complete. Many hours were wasted, I spent a day entirely unpaid in which judge and jury simply sat and twiddled their thumbs, and then the legal aid bill was increased by a modest amount on the third day. None of this was the fault of the defendant or his legal team.
This is, of course, a single example from a single small court and the diary of one single advocate. I know that my professional colleagues would be able to tell many, many similar tales.
The system we have is full of waste from top to bottom. There is inefficiency all over the place, and the lawyers know how to reduce or extinguish it.
It is therefore a great pity that in preparing this consultation document not one single lawyer was asked for their views on how to reduce the cost of criminal justice. No-one was ever asked how things might be improved. There is no qualified lawyer or experienced criminal justice practitioner in the policy team which created the consultation paper. We know that is the case because the question has been asked and answered at the recent meetings with the MOJ.
There are ways, too, for the system to make money. It would be perfectly possible, for example, to introduce a banking fraud levy, to make the financial institutions pay for the cost of cases emanating from their leaky and insecure systems. Large-scale financial fraud and insider trading cases make up a very large proportion of the legal aid bill, yet the banks pay not a single penny towards the cost of dealing with these matters. Such cases could have been avoided if the banks had installed adequate security in the first place.
Deferred Prosecution Agreements will in due course address some of these issues, but although they will reduce the legal aid bill it seems likely that Ministers will simply bank those savings but persist in reducing the service which is available for the rest of the population.
Aside from this, there has been no calculation of the overall impact on the public finances of these changes. MOJ does not know how many people are likely to be made redundant, how many people will have to claim benefits, how many businesses will become insolvent, how many firms will have to be intervened in by the Law Society at great cost to the others, how many other services will become unviable because the solicitors who purchased them have disappeared. There has been no analysis of this and MOJ have confirmed as such in a recent FOI question I asked.
I can say that just from our firm 50 people would be made redundant and three partners might well become insolvent. The leases on three buildings would be defaulted on. Services in family law, conveyancing, private client (wills and probate) and general civil law would be lost as well as those in crime. Something like £2.5 million (for the avoidance of doubt, not just legal aid revenue) would vanish from the local economy with corresponding loss of tax revenue and local spending power. Choice of supplier would be lessened for the people of Grantham, Newark and Lincoln. In Newark I can say with certainty that no firm would remain which would offer criminal legal aid services.
These sorts of issues would have to be multiplied across at least another 1,200 firms.
The policy is therefore horrifically short-sighted. A headline saving of £220 million is very much less as a net saving when you take into account lost tax revenues, increased benefit payments, additional costs of introducing the scheme, administering insolvency via the Official Receiver… the list goes on. If the deficit is to be reduced the Government needs to start thinking holistically and examining knock-on effects in other budgets. No household could work in the way that HMG does without becoming insolvent very quickly indeed.
I am concerned too, for the administration of justice. You may not be familiar with the detail of the consultation paper. Indeed, Mr Grayling showed himself to be unfamiliar in a meeting with lawyers earlier this week. The proposals, in a nutshell, do this:
a) Reduce the number of providers from a present figure of approximately 1,600 to an absolute maximum of 400. It is accepted by MOJ that it is possible there could be as few as 38. Bearing in mind that some providers will bid in more than one area, or even nationwide, the number of solicitors firms which will close is at least 1,200 and probably more like 1,400. MOJ does not know the number of redundancies but I would hazard a guess at around 15,000;
b) Deprive legal aid defendants of any choice in their representation. They will be allocated to a solicitor against their will and only be able to change solicitor in exceptional circumstances;
c) There will be a limited number of providers in given geographical areas. In Lincolnshire there will be four, in Nottinghamshire six. My work is primarily in Lincolnshire and I can say there are about 14 firms doing criminal legal aid work. 10 of them will no longer be able to do so. There are more firms in Nottinghamshire and the majority will lose their contract. There will be no firm in Newark providing this service as none are large enough.
d) Each provider will get a fixed market share. In other words, in Nottinghamshire each provider gets one sixth of the work, allocated to them by strict rotation and without regard for the interests or needs of the client.
e) Providers are chosen by price competitive tendering. After fairly basic quality and delivery criteria, contracts will be allocated to the lowest bidders, with a ceiling price of 17.5% below the 2013 fee level. This is a race to the bottom.
The biggest concern must be for quality. At present we have a free market in which defendants can choose their solicitor. Some are randomly allocated to a duty solicitor, others come by recommendation, some are repeat clients. Those firms which provide a good or high quality of service expand, those which do not tend to remain small. Some firms have developed expertise, for example in animal or firearms law. A number have expertise in a sector close to your own heart, the Courts Martial.
The market ensures quality services. By and large we work hard to provide a good service, often working far more hours than we are paid for. It is not unknown for me to be in the office at 3:00am finishing a written document for the court, or honing a closing speech or cross-examination. I am not paid extra for doing so – the fee is fixed by length of trial and other factors, not by how many hours I do.
I would ask you to bear in mind that defendants are exactly that – they are entitled to be regarded as innocent until proven guilty, so they are not “criminals” as Mr Grayling has previously referred to them. I have represented taxi drivers accused of sexual assault after passengers have refused to pay the fare, a businessman who sacked a fraudulent employee and was then accused of assault, husbands accused of domestic violence to support a child custody case – all of these people rightly acquitted, and all entitled to decent representation.
My concern for the clients is that once providers have been guaranteed a fixed and immovable share of the market – which can’t be expanded by good service or contracted by poor service – and have also bid the lowest fixed price for the work, the commercial imperative is bound to be to reduce services. Quality will inevitably suffer, and we will move to a privatized version of the US Public Defender service, where overworked and underpaid lawyers, often with 600 or more cases to look after, have been known to spend as little as seven minutes per case.
This problem is compounded by the fixing of fees. Where presently there is a different fee for a guilty plea, a cracked trial (one which is prepared for trial but resolves either because the defendant changes their mind, or because the prosecution drop the case), or a trial, the proposal is that the fees will be harmonized. If there is no difference between the fee for a plea and a fee for a trial, what commercial justification can there ever be for the extra work involved in preparing a case for trial? And if a trial is going to happen, what incentive is there to do a proper job and not just a cursory one?
The MOJ says that it wants to “incentivize guilty pleas” and “streamline the system”. Does it really suggest that professionals bound by a code of conduct up and down the country are advising people to have trials they should not have in order to increase the fee? If it does think that it is both entirely wrong and horrifically insulting. Every day of my professional life I find myself advising clients that they should plead guilty, even where that is directly against my own interests. And every day I have clients who do not wish to accept the advice and want a trial. That is their right and the right of everyone in a free system.
It should be added that in quite a few cases where I have initially advised there ought to be a plea of guilty, on closer examination after disclosure, or at trial, the evidence turns out not to be as first thought and people have been acquitted. They were right in their instinct all along.
Most importantly, if we are to remain free it must be the choice of the defendant. Yet the risk of these proposals is that there will be those who are forced into pleading guilty when they did not wish to. The most likely to suffer from that are those who are inexperienced or vulnerable. Some of these cases will be miscarriages of justice.
There will be an additional systemic effect. At present cases are, by and large, prepared properly. This means that the issues are properly identified prior to the trial, the correct evidence called, and so on. If there comes a time in which this is no longer the situation, trials will more routinely have to be abandoned, adjourned or will become longer. Miscarriages of justice or appeals will also increase. There may be an increased conviction rate, not necessarily rightly, and that may have a prison cost too.
Much good is done in the system by the goodwill of lawyers. Barristers like myself, especially during trials, do much unpaid work outside of court hours. If witness statements need editing, interviews need to be agreed, or legal arguments prepared, that is done during the evening and at weekends. In the trial I did last week I rose at 4am one day to finish my speech. I spent Friday night reading the papers for my case on Monday, Saturday night reading and editing proposed agreed facts from the prosecutor, and Monday night reading proposed interview edits from the same prosecutor. He had spent his evenings preparing them, as had I. The result was that the case could go on without delay. Bearing in mind this was the tragic case of Peter Thurgarland, which you have probably seen in the local news, that must surely be in the best interests of his family, who had suffered enough.
It is unlikely to be the case under the new regime that so many lawyers will give so much of their own time. My family undoubtedly suffers because I do, but under the new system could I ever justify that?
It should be recognized that the unpaid and out of hours work of lawyers contributes greatly to the smooth running of the court system. If it were to be removed the system would grind to a halt, and that would surely happen when G4S, Serco and others are running it. That again has a cost.
There are other effects too. Presently we have many experienced criminal lawyers. I have worked my way up from the bottom of the profession over the last 16 years. Having graduated from University I worked as an outdoor clerk, sitting behind counsel in the courts of London. Then I qualified to give advice in police stations. After that I undertook Magistrates’ Court case preparation, and later Crown Court case preparation. During those latter stages I continued working in police stations out of hours, and studied part-time, firstly towards the Postgraduate Diploma in Law, and later towards the (then) Bar Vocational Course. After four years of part-time study I was called to the bar, and then spent a year in pupillage, during which time I lived away from my family during the week. I am now approaching eight years’ call.
Many lawyers in criminal firms have a great deal of experience. We understand the criminal law and procedure, but also understand our clients and their cases. Criminal practice is as much about people as it is about the law, and the skills developed in years spent advising in the police station in the middle of the night pay off when advising difficult clients about their options.
An experienced and trusted lawyer can give unpalatable advice to implacable individuals in a way that inexperienced or untrusted lawyers cannot. Many needless trials are avoided this way.
The new system will destroy this on both levels. The new providers will not need to retain expensive duty solicitors and their need for efficiency and keeping the cost base down will mean that they will make all their expensive senior staff redundant, and hire only the cheapest inexperienced junior lawyers. If a job can be done by unqualified paralegals it will be. If work can be done by agency or temp staff rather than employees then that will be the preference. All those lifetimes of experience, knowledge and skills will be lost, and the best students will no longer consider coming into criminal law. Very few criminal firms or sets of chambers will be offering criminal training contracts or pupillages this year or next.
The other way in which damage is done is through the deprivation of choice. I have clients that my firm has represented for years, and in some cases where we represented their parents too. Of course it would be better if they stopped offending, but on the assumption that this is wishful thinking it is necessary to consider what will happen. At present these, often difficult, clients will accept our advice on trust because we are their solicitor. If we tell them the evidence justifies a plea they will usually accept that advice. In this way the work of the court is facilitated and justice runs more smoothly. Will that be the same if they are required to go somewhere else, perhaps to G4S or Eddie Stobart, and represented by an inexperienced solicitor who meets them for the first time at court?
A word about the Courts Martial. Presently most armed forces defendants are defended by a civilian lawyer allocated and paid by the AFCLAA. There are some firms with a niche speciality in this area, and they greatly assist the Judge Advocates in running the Courts because they know what is expected and they are also familiar with the necessary procedures. Many of those firms will cease to exist under these proposals and it is certain that the new providers will not provide the same level of service.
I myself appeared at the Catterick Court Martial Centre last year, representing a Guardsman accused of fraud. I was able to advise him to plead guilty, which he did, and our work saved his career because he was sent to Colchester with the Judge Advocate’s recommendation that in view of his excellent active service record he should be put on the NCO Cadre.
I had not previously appeared at such a court. I bought, at my own expense, the main book on the subject, by JAG Rant, and I downloaded and considered all of the procedural guides. I taught myself all the relevant traditions and procedures in order to be able to do a good job for my client. All of that was unpaid and additional. Again, is that likely under the new regime? I very much doubt it.
I should add that although I have focused in this letter on solicitors, the proposals will destroy the Bar too. There will be almost no work left for them to do when the new providers are required to do all their advocacy work in-house to even scrape a profit.
I appreciate that MOJ feels that the market is presently inefficient. I do not see why that justifies these changes, because any inefficiency in the market is a problem for us rather than MOJ. It does not affect the legal aid bill, which is dictated by the number and nature of cases rather than how we structure our businesses. If there is inefficiency then in due course the market will sort it out, while retaining quality and our system’s reputation. Interference by the state in this market, to remove quality, to deprive defendants of choice, to create a two tier system where poor defendants have no real representation and wealthy defendants get a gold service, is wholly destructive and unjustified, and moreover seems to me to be anathema to traditional Conservative ideology.
Our justice system is a valuable thing, developed over hundreds of years, and admired the world over. Our criminal lawyers are respected worldwide. Our courts are seen as fair. Our judges are seen as impartial and able. If these proposals are implemented this will no longer be the case.
I can say that in my time in the profession I have never seen our professions so united in opposition to Government proposals. If MOJ had asked before producing these ideas we would have told them that they will not work, and you risk total system collapse. We would have been willing, and still are willing, to give you ideas of where to save money and where to make it. If we worked together we could secure the safety of the system for future generations, and be a beacon of hope for justice throughout the World. But we cannot do that while the Government holds a gun to our heads and threatens to destroy everything we strive for every day.
One last thing. These are proposals of the utmost significance. It is absolutely not acceptable for them to be implemented by secondary legislation without so much as a vote in the House. I believe in parliamentary democracy and open debate. The Government should propose this by way of an Act of Parliament so that there is full and proper scrutiny. To cut Parliament out and to enact changes as important as this without any debate is utterly undemocratic and wrong.
I therefore hope that you will reconsider whether you will engage in debate about these proposals, and will not simply accept what the MOJ says in its standard letter.
I would be delighted to discuss with you and deal with any questions you may have. I know other lawyers in Newark would too. Please just let me know when.
Many thanks for your assistance.
Last night our beloved Lord Chancellor appeared on the BBC Radio 4 panel show, Any Questions.
Some hoped that perhaps that might mean that a question could be asked of Mr Grayling relating to the proposals for legal aid.
The reason this is so important is that Mr Grayling refuses to meet anyone who is likely to challenge his ideas, and does not propose to implement his ideas in a manner which requires a Parliamentary debate. That means everything he says, and all the public misconceptions, are unchallenged.
Likewise in the press. Some newspapers have published stories which give our side of the debate, but others have allowed Mr Grayling an unchallenged platform to state his views. This is not balanced journalism because there is no exploration of the other side, or even an opposing quote.
I find it rather frightening that this can happen in our “democracy”, because this means that the executive can push through measures which severely damage access to justice for ordinary people who cannot afford to pay for their own representation, which in many cases limit the ability of the population to challenge the executive, and all of this happens on the back of a wave of populist misunderstanding and misinformation.
Only when the history books are written and say something like the following will the public sit up and take notice, but by then it will be too late:
“The ability of citizens to hold their government to account and to access justice in the courts increased steadily in the late twentieth century. However, by the early years of the 21st century the executive was reaffirming its hold on power. By 2014 successive governments had introduced measures to weaken the judiciary, the courts and the lawyers who served them. The public acquiesced in this process, believing it was in their interests, not appreciating that it was their rights which were being limited. A popular wave of hatred for legal aid lawyers supported the government’s aims, and it was not until a mass of cases were referred to the Court of Appeal by the Criminal Cases Review Commission in 2025 that the great miscarriage of justice scandal broke. New measures were introduced but did not take effect for decades due to the weakening of the legal professions…” [my pessimistic view of future history]
So, it is important that the questions are asked. And asked they were on Twitter last night, with question after question appearing under the #bbcaq hashtag. I’d estimate that about 80% of the tweets last night related in some way to Mr Grayling and his proposals.
Here’s a flavour:
#bbcaq Please ask Mr Grayling why he refuses to debate legal aid with Michael Turner QC of the Criminal Bar Association
#bbcaq Please ask Mr Grayling how he is upholding the British tradition of a fair and equal trial by introducing justice on the cheap.
#bbcaq Please ask Mr Grayling why he is going to destroy 1500 self-made small businesses in order to allow big business into justice system.
#bbcaq Please ask Mr Grayling why MOJ refuses to state how many people will be made redundant as result of legal aid changes (c.15,000?)
#bbcaq Please ask Mr Grayling why he thinks criminal defence for ppl who can’t afford to pay should never rise above the “acceptable” level.
#bbcaq Please ask Mr Grayling where the judiciary will come from once he has destroyed the criminal bar and solicitor professions.
#bbcaq Please ask Mr Grayling whether he has actually considered any of the many questions being asked by lawyers, or is justice irrelevant.
#bbcaq Pls ask Mr Grayling whether it is consistent w dignity of his office to repeatedly misrepresent lawyers’ earnings for political ends
#bbcaq Please ask Mr Grayling why he thinks it acceptable to take such drastic action ref justice system without a debate in Parliament.
#bbcaq Pls ask Mr Grayling if he was wrongly accused of expenses fraud if he’d want his lawyer to be high quality or just acceptable?
#bbcaq Should Mr Grayling resign his position as Lord Chancellor given his disdain for hardworking lawyers of both professions?
Were any of those questions asked?
We need to make sure these issues are aired properly before it is too late.
Since I wrote the above post there have been a couple of other media events, but they don’t change the overall picture above.
The first was the appearance by barrister and ex-MP Jerry Hayes on Question Time. Again the BBC was deluged with questions, and again nothing was raised. Mr Hayes managed, briefly, to get a reference to the changes in, but as it was not the question being asked nothing went any further forward.
The second event was last Sunday on the BBC’s Politics Show. Chairman of the Criminal Bar Association. Michael Turner QC, travelled to Birmingham from London for an interview. We all hoped this would be a proper expose given national coverage. We were therefore horrified when it turned out this was local coverage only, and Mr Turner, who had spent about an hour being interviewed, was broadcast for only a few seconds.
It seems abundantly clear that this important issue is simply not going to be aired on the BBC, and the country will sleepwalk into the loss of a system which is admired the World over, apart from in our own country.
On Saturday the Leader of Her Majesty’s Loyal Opposition was in our local city of Lincoln, campaigning for his party in the local elections.
We thought it would be a pity for the occasion to go unmarked. One local lawyer managed to ask Mr Miliband a question about what his views on the consultation paper were . The response?
“Any cuts under Labour would not affect clients’ access to justice.”
So, no suggestion of investment or undertaking not to cut. And the slightly strange idea that one can cut but not affect access to justice. If Mr Miliband knows the answer to that particular quandary we would appreciate him passing the information on to the Ministry of Justice, who certainly don’t have a clue about how to avoid it, given that they’re busy in almost every sphere placing padlocks on the doors leading to the hallowed Halls of Justice.
What is more worrying is that Mr Miliband didn’t seem to know what the question was asking about. He could have said, “We’re aware of it and are looking at other ways to save money.” Or he could have said, “We agree that cuts need to be made.” Or better, he could have said, “We disagree with these proposals and will oppose them.”
Instead, he gave a general answer which was not thought through and did not address the issue. That may mean that he simply does not care. It may mean that his policy staff have not briefed him. Perhaps his front bench justice team have not decided how to respond.
There is one certainty here. It is that these important plans, endangering the entire justice system and risking devastation for both professions and thousands of businesses, are not on the radar. If they’re not on the radar they will not be opposed. They will not be debated. They will not be questioned and they will not be scrutinised.
If changes like these can go through without even a second glance from the Opposition that is truly horrifying.
We hope that all those who care about justice will carry on trying to engage with their representatives, respond to the “consultation”, attend an MOJ event, and generally keep shouting about what a disaster all this will be. We need to make this an issue which is noticed.
In the meantime, we hope that the letter we had handed to Mr Miliband’s senior policy staff on behalf of all criminal lawyers in Lincolnshire is read and considered carefully. It won’t take long to read, but if these changes go through it will take a lifetime to undo the damage.
So Mr Miliband, here’s the letter again in case it’s been mislaid. A response to our tweets about whether you’ve read it yet would be appreciated. Radio silence so far.
Dear Mr Miliband,
For many years the criminal justice system has been deprecated by those both in Government and in Opposition. The dedicated hardworking professionals serving it have been derided as fat-cats and the decisions of the courts dismissed or criticized. Those in power, the press, and the public have forgotten the value of the rule of law and the benefit brought to a democracy by a high quality court system.
The culmination of this is the release by the Coalition of a green paper entitled “Transforming Legal Aid”. Its proposals represent the climax of a campaign to reduce access to justice and erode the principle of equality before the law.
In the sphere of criminal law the paper proposes price competitive tendering and savage fee cuts across the board. The number of criminal law providers will be slashed from 1,600 to a maximum of 400, but possibly as few as 38 may remain. Publicly-funded criminal litigation will in the future be provided by a small number of providers who bid the lowest price for their services.
In the future there will be no client choice. The market which presently regulates our services by reference to the quality of what we provide will no longer exist. Instead the limited providers will be allocated clients without reference to the nature of the case or the suitability of the provider. The quality of the service is irrelevant and the commercial imperative will be to provide the cheapest possible service. The market share of each provider will be fixed such that the nature of the work done by that contractor will have no impact on whether they succeed or fail. Only bargain basement prices will count.
In a system run in this way justice will suffer. Trials will not be prepared properly as the cut-price service on offer will allow for only the bare minimum of preparation. With every penny being strictly monitored papers will not be read carefully, witnesses will not be seen, accounts will not be investigated and issues will not be identified. The work of the courts will be harder, trials longer, and justice will be inconvenienced by delays, adjournments, mistrials and appeals arising from poor work.
Victims will suffer too. The agony of the trial will be prolonged or repeated. Witnesses will suffer for the same reasons. Defendants, some of whom it ought to be remembered have been wrongly accused and may be innocent, will also be harmed. Some will be wrongly convicted; others will plead guilty to things they have not done because of pressure put on them by a lawyer who can only make the business model work by increasing the number of guilty pleas.
The value of chosen lawyers working in a market regulated by quality rather than price alone cannot be overestimated. We know our clients and our communities. We can give unpalatable advice to implacable individuals in a way untrusted people cannot. We identify the issues in a case from years of collective experience. We help the prosecution to weed out the hopeless cases and are trusted by the courts to make sensible submissions.
Under the new system those links and advantages will be broken and lost forever. With no link between clients and firms trust will be eroded and justice impeded.
The criminal bar is not safe. The new providers will only be able to make a profit by taking all their advocacy work in-house. This will destroy the junior bar and with it the bar’s future. Before long the criminal bar will be a shadow of its former self. Who, then, will make up the crème de la crème of the criminal judiciary? Who will prosecute and defend the most delicate of sex or most violent of homicide cases?
The human cost should not be forgotten. With the loss of criminal work around 1,500 firms of solicitors will become insolvent. They exist on a mixed diet and with a significant proportion of their income removed the entirety of those businesses will be affected, not just crime. Firms will close with the loss to those communities of all those employment opportunities and legal advice services. Small and medium sized towns will be without a local solicitor and their office will stand empty. Thousands of people will be made redundant and become a burden on the state. Those local businesses which had been built up over years will be destroyed at a stroke.
We understand the austerity drive. We see the suffering in our communities and we suffer too. Very few legal aid lawyers are fat cats. Most work incredibly hard for little reward but the value of job satisfaction. However, the financial justification for this destructive policy is not there. The cuts instituted thus far have already saved all bar £52m of the Government’s target. That sum could easily be saved elsewhere in the system if only someone would ask where.
It is proposed that there be no debate on this issue on the floor of the House of Commons. We are told that there is a cross-party consensus for these changes.
We hope you may reconsider that position. The country is presently being led blindfolded into the loss of the most well-respected justice system in the world. Hard-won traditional rights and liberties will be destroyed and honourable historic professions decimated. Once that road has been taken it will not be possible to retrace our steps.
If Labour believes in justice and the rule of law, it will object to these sweeping changes being proposed without so much as a vote in the House.
Help us to Save UK Justice.
Whatever else you might think of them, the Ministry of Justice are pretty good at political spin. All their announcements have been about saving money for the taxpayer. Given that most lawyers are taxpayers, it seems almost like they’re on our side. It’s only wastage that MOJ wants to cut. For reasons I’ve previously given, I don’t accept the MOJ case that this is about saving money.
However, there’s another point here. MOJ never says in its publicity anything which refers to the impact its policies have on people. Not the impact on clients, other people in the justice system, or on the many thousands of lawyers and their staff who will be made redundant, and have the businesses they’ve created destroyed. Exactly how would it feel to the partner in a medium-sized firm who has to break the news to 50 staff members that all of them are out of a job, as is she?
The human impact is hidden, However, I wanted to know how sizeable MOJ thinks the human impact is. After all, they must have thought about that. Only someone completely irresponsible and heartless would not have considered how many people would lose their jobs and what the effect of that would be.
Of course, that’s not relevant only in terms of common humanity. It’s also relevant from a financial point of view. MOJ says it is interested in saving money for the taxpayer. Well, tax income is part of that equation. Every staff member in a firm of solicitors, with the possible exception of a few low hours part-time staff, will pay Income Tax and National Insurance. The employer pays employers’ NI too. So too their various suppliers. The partners in law firms are taxed on their share of the profits of the firm. Banks get paid interest on their financing of the firm. Their landlord pays tax on the rental income. There are utility bills and other services.
In other words, there is an economic impact. A solicitors’ firm is a business putting money back into the Treasury’s bank account, and providing employment in a local area.
If the firm closes down, all of the above revenue is lost. And many or most of the staff employed by these firms go from being economically productive to potentially being benefit claimants. There are other consequences like mortgage repossessions.
So, I thought, if MOJ is really interested in saving money, they’ll have done these sums. They’ll have compared the amount of money paid out in legal aid with the amount of tax and NI revenue, and associated VAT, paid back to the Government. They’ll have looked at the net gains and losses. They’ll have considered how many firms might go under and how many people might lose their jobs. They’ll have considered how many of those are lawyers and how many are other kinds of staff. They’ll have done the economic sums and worked out what the impact of their policy is.
When I heard that the timetable for “consultation” on price competitive tendering was being accelerated, I lodged a Freedom of Information Act request with MOJ to ask about the human impact. What I asked was this:
‘Please provide answers to the following. The questions should be answered on the basis the MOJ’s proposed plans take effect unaltered from the original proposal which is to be put to consultation in April.
1. Has the Ministry of Justice (“MOJ”) conducted an impact assessment for the proposed plans for competitive tendering for publicly funded criminal defence services (“the Plans” and “the Services” respectively)?
2. Has MOJ conducted an equality impact assessment for the Plans for the Services?
3. How many solicitors’ firms does MOJ estimate will become insolvent and/or cease to practice criminal law if the Plans are implemented on MOJ’s preferred proposal?
4. In respect of 3 above, please specify many will withdraw from the sector and how many will become insolvent.
5. How many redundancies does MOJ anticipate will arise as a result of the Plans for the Services being implemented on MOJ’s preferred basis?
6. In respect of 5 above, how many redundancies are forecast to be in the following categories:
b) Support Staff
c) Associated industries, e.g. legal support companies such as providers of paralegal/police station staff,
office suppliers, enquiry agents.
7. How many barristers in independent practice does MOJ estimate will cease to practice criminal law if the Plans are implemented on MOJ’s preferred basis?
8. How many barristers’ chambers does MOJ estimate will close and/or cease to operate in crime as a result of MOJ’s Plans being implemented?’
I received the answer the other day.
Here’s the relevant section in full:
I can confirm that the department holds information that you have requested. The information is exempt under section 21 of the FOI Act because it is reasonably accessible to you, and I am pleased to inform you that you can access it via the following link [to consultation paper]. This consultation is a way for the Ministry of Justice to seek views on the proposals outlined in the consultation document and likely impacts of those proposals. Section 21 (1) of the Freedom of Information Act exempts disclosure of information that is reasonably accessible by other means, and the terms of the exemption mean that we do not have to consider whether or not it would be in the public interest for you to have the information.
So the MOJ says that the answers to my questions are in the green paper.
I accept of course that there are impact and equality assessments of sorts in the paper, but any statement at all of exactly how viable they think this is? How many firms will bid and how many can’t? How many providers will bid in more than one area? How many firms will go insolvent? How many job losses? I accept that the exact answers would be dependent on what happens in the tendering process, but they could estimate or give details of how they’ve considered this.
Those details are nowhere to be seen. The “answer” from MOJ is a total cop-out.
Needless to say, I have requested a review of the decision. Apparently they have two months to consider. In two months time, with the new shortened consultation timetable, the consultation period will be over. So MOJ have shut out any possibility of being able to refer to a FOI answer in response to the consultation.
There are three possible reasons for that. None of them are favourable. Perhaps MOJ simply does not know and has not thought about it. If that’s the case it means they are totally incompetent and moreover have not looked at the overall economic impact of their proposals. That harms their case for saying that this will save as much money as they allege. Perhaps MOJ do not care. That speaks for itself, and is unbelievably callous. Or perhaps MOJ do know the answers, have talked about them, and decided that job losses of these levels are acceptable, perhaps because we’re only lawyers (tell that to the conveyancing secretaries who lose their jobs too Mr Grayling). Maybe, as many of us suspect, this is not about saving money at all. It is about shutting down access to justice.
Whatever it is, MOJ does not want us to have the answers. It does not want an informed debate. It does not want the public to have the full picture and be able to understand what the policy does. One person’s cut is another person’s job. MOJ want the truth to be hidden and don’t want the two to be connected. It wants the truth to be hidden because the truth does not support its case. It wants the truth to be hidden because it wants to make policy based on spin rather than argument.
It is frightening that in a supposedly open, free and democratic society a Government department can act in this way, more or less with impunity.
And that is why lawyers, and the laws they deal with are so important.
I have now had the response to my offical FOI review request. Amongst other things, the answer from MOJ is this:
In relation to your Questions 3 to 8 which relate to insolvency of firms and redundancies, the answers to your questions are partly contained in the consultation paper and impact assessments but no statistical analysis on the impact of the proposals in terms of redundancies and/or insolvencies has yet been carried out. The Ministry of Justice does not hold the data required to conduct such an analysis. However, in accordance with usual consultation practice, we have invited respondents to the consultation to highlight which other factors we should take into consideration when conducting our final impact assessment based on the policy decisions made (including the final design of a competition model) and provide any necessary data to support such an assessment.
So it would appear that the answer is “we don’t know and we haven’t thought about it”.
How, if a Government is genuinely seeking to save money, is it possible to produce proposals and not reflect on what the consequences of those proposals will be? If the net saving is reduced or extinguished because of other systemic costs arising as a consequence, the aim of the policy will not be achieved.
This aspect of the plan is incompetence, pure and simple.
Mr Halloran at Lawtons Solicitors has done some more work on the figures.
To help him publicise the work I’m reproducing it in full below. The original can be seen here.
The amount spent on criminal legal is said to be over a billion pounds a year. It has been used in the Consultation document, accompanying press releases and articles by the Secretary of State.
A proper considered analysis of the figures reveal a different picture. The suggested spend figure for criminal work in the Consultation document is put at £1.109 billion.
These figures relate to work billed in the period 2011/12. As such, it relates to historic work billed in that financial year and does not provide an accurate spending figure for current rates. The point about this is that the reductions imposed since 2010 are not reflected in the published figures.
The up to date spending figure, we are told, will be provided prior to any bid round. They are in fact available as projected figures. The latest figures available are contained in the Business Plan for the Legal Aid Agency (LAA) published on 16 April. This will be subject to scrutiny from the Audit Office and is the first Business Plan from the LAA. These figures will be accurate.
The projected spend on criminal legal aid is £941 million for financial year 2013/14. The saving on the figures used in the consultation document is already £168 million.
The aim of the consultation is to achieve savings, from the criminal budget, of £220 million by 2018/19. If the correct figures are used the saving needed is £52 million.
The effect of previous reductions in scope are still being felt and will have an impact on the overall spend going forward. This is conceded in the LAA’s Business Plan.
The historic spending figures also reveal the extent of the cuts already imposed. A consultation document from the MoJ released in November 2010 (Proposals for Legal Aid Reform) provide the historic spending figures on criminal legal aid.
In real terms, allowing for inflation, the current projected spend is less than the spend on criminal legal aid in 1997/98, when the spend was £955 million (page 215). Even this figure is 3/4 years out of date.
The amount of legislative changes since 1997/98 have been significant and this has been a cost driver. The prison population in 1997 was (including those subject to a suspended prison sentence) 69,000. The prison population in 2011 was (again including those subject to a suspended prison sentence) 116,000. These figures are in a report published by the MoJ in 2013 entitled Story of the Prison Population in England & Wales 1993-2012.
Despite the increase in the complexity of the work we are being asked to deal with and the seriousness of the work, as judged by the substantial increase in the number of cases crossing the custody threshold, the efficiency of the legal aid system is evident.
The savings and efficiencies that are being asked of the legal profession have already been achieved and then some.
… unusually for me.
The Law Society Gazette has published an excellent article which echoes many of the sentiments I hold.
It’s worth looking at the comments at the bottom, because Stephen Halloran of Lawtons Solicitors makes a rather good point.
The consultation is aimed at reducing expenditure by £220 million, but the paper is based on old data about legal aid fees, before recent cuts, rather than current data reflecting cuts which have already been made. The fees being paid in legal aid now are already significantly lower than those referred to in the consultation document.
I knew that much. However, Mr Halloran has very diligently done the maths, and points out that apparently savings of £168 million have already been achieved.
That would suggest that a far smaller saving is required to get the MOJ to the level it apparently wants to achieve – only £52 million.
To impose further cuts on top of such already significant cuts will lead to bid figures very much lower than even the consultation envisages. This is not a financially viable model for the provision of basic services, let alone quality ones in the interest of justice.
Secondly, if the savings to be achieved are relatively modest, only relatively modest changes would be required to implement them. No need to destroy an entire system and cause thousands of redundancies for such a small gain. The entire process becomes utterly disproportionate.
And of course it could be asked whether the savings from legal aid are already sufficient, and changes elsewhere in Government could make up the difference.
Indeed, the cost of consulting, considering responses, reporting, legislating, and dealing with the knock-on effects from the process and whatever results from it are likely to far outweigh these modest savings.
The MOJ should think again.
The general view amongst criminal lawyers is that we’re facing the fight of our lives, and the Government has something of a head start and numerous advantages (our money, power, access to media…)
The lawyers are represented by a number of different organisations. Some, like the Criminal Bar Association, are right at the sharp end of the campaign. Similarly with solicitor organisations like the London Criminal Courts Solicitors Association and the Criminal Law Solicitors Association.
The response from those more official bodies has been far more muted, rather to the frustration of many of us.
This is an open email I have sent to the President of the Law Society, along with the Vice President (who happens to be the Council Member for one of the counties my firm is in), and Council Members representing criminal law and the other relevant county.
Any response will be published, if suitable.
I regard the comments as equally applicable to the Bar Council, and will forward to the Chair. It is also my answer to those who despondently say that we have to agree to the proposals once we’ve amended the terms, and those who start with the basic idea that there must be cuts and maybe even tendering has a place. With much regret, that criticism has to be levelled at the Legal Action Group.
Don’t misunderstand me. I accept that we’re in austere times. But the Goverment chooses its own priorities, when there is wastage throughout the system. Parliament and Government itself costs an eyewatering amount of money, much of which could be saved, and much of which is less obviously of value to any of us. The legal aid bill is miniscule relative to much Government expenditure but huge in the eyes of the public because of negative publicity. The difference is that they are in control.
They have chosen to destroy respect for our professions and the rule of law, and now pick on the justice system using the public disquiet they created as justification.
We do not have to accept this. We do not have to agree with their terms of reference. We live in a democracy and I believe the future is, at least in part, what we make it. We have a responsibility to make the entire argument, not just the bits they want us to make.
I am not a member of the Law Society, but I write to you as a fellow concerned lawyer, employed in a solicitors’ practice. I have chosen to write to you in particular because you are the President, Criminal Law Representative, and constituency members for Nottinghamshire and Lincolnshire respectively. My firm’s practice is over one third criminal law and its offices are divided between Lincolnshire and Nottinghamshire.
I will write in similar terms to the Chair of the Bar. Indeed, my comments apply equally to all those who say that we must accept cuts.
I have seen your recently released consultation paper and I will respond to that in due course.
I mean no disrespect. I am sure you all work very hard and have our interests at heart. I have seen the statements released and they are a start. However, I wish to express my concern at the basic stance adopted by the Law Society. I believe most criminal lawyers working at the coalface share similar views, but I don’t claim any right to speak on behalf of others. They will have to speak for themselves. I hope they do so.
The Government, and previous governments of other shades before it, have systematically denigrated lawyers, law, the decisions of the courts, and legal aid, for many years. Respect for the rule of law must be at an all time low. We are faced with repeated criticism and misinformation about every aspect of our work and every area of practice. These criticisms have not been effectively countered by the professions. As a result many areas of practice have been attacked, and access to justice has been chipped away.
The result is that the Secretary of State for Justice can say with a degree of truth that the criminal legal aid system has lost credibility with the public. It has lost credibility as a result of years of negative briefing and the result that the public wrongly believe that we are all, without exception, fat-cat lawyers with our tongues in the feline milk dish of taxpayer-funded legal aid. Every day, it is thought, we play a game of cat and mouse with justice, in which we use every underhanded trick in the book to get our guilty clients off.
We all know that this is untrue. We play a vital role in an important system which upholds democracy and the rule of law. We spend much of our time advising our vulnerable clients that it is in their interests to (in effect) save taxpayers’ money by pleading guilty. We assist the Courts in finding the right outcome for all concerned. We deal with victims and witnesses in a professional and, I hope, generally compassionate manner. We deal with some of the most difficult and unpleasant individuals society has created, some of the most harrowing events known to humanity, and we often do so in the middle of the night. Solicitors and counsel alike work many more hours than they are paid for. They get the job done because it has to be done.
For all that valuable work, there is no reward in society. Lawyers are not respected. People assume we earn a great deal when many of us do not. At every social gathering we ever go to we have to explain why we defend the guilty. Basic constitutional principles which have existed for centuries are not accepted as a given by society – the idea that the prosecution have to prove their case is thought to be an alien European concept, when it is totally home-grown and a gift we gave to the World, rather than the other way round.
Legal aid lawyers are not paid a great deal, payments have been reducing steadily, and the majority work in this field out of love or duty, not for the rewards. The rewards would be greater elsewhere and we choose not to take them. Our offices are run-down, the paint is peeling, and our carpets threadbare. Yet we still come to work, and work hard, for the interests of our clients and because we believe in the adversarial equally-balanced justice system.
We live in times of austerity and I appreciate that our clients and members of the public are suffering. I hope I can be forgiven a little cynicism when I observe that it sometimes seems that the only people in today’s society who are not suffering are Members of Parliament and the current Executive. I accept that as responsible members of society we must bear our fair share of difficulties.
However, the question must be, what is that fair share? Indeed, are we presently already bearing it after years of cuts and an ever-increasing workload?
I am concerned that in prefacing all the Law Society’s comments on this issue with the premise that we accept that cuts must be made, and Government will not listen to us if we suggest otherwise, we start on the wrong foot, going in the wrong direction, and we fail to make our case.
The Government does not come to the Law Society to talk, in good faith, about what the right way through this is. Mr Grayling does not, in my opinion and with all due respect, speak truthfully when he says that he is interested in finding a way to avoid price competitive tendering. If that were the case it would have been easy indeed to launch an open consultation with a number of different options, or simply solicit suggestions from those working in the system as to what should be done. With thousands of intelligent and able lawyers, all well acquainted with the system and its failings, I am sure there could have been many suggestions.
That is not what was done. We are told there is to be no debate about price competitive tendering. The questions are just about the details. It is assumed that savings must come from legal aid and not elsewhere. Not ensuring that only the right cases are prosecuted. Not dealing with expensive fraud cases in a different way or requiring the banks who authored all our misfortune to pay their fair share of the costs of cases emanating from their system. Not stopping Government meddling with the law relating to sentencing and therefore increasing the burden on lawyers and courts of all levels as we work out what yet another set of laws mean. Not ending the repeated invention of new offences for political ends. Not preventing wastage in the court system, cracked trials which could have cracked earlier, unnecessary adjournments.
And all that is only the small list which springs to mind now, and does not even begin to consider what happens in the rest of public life.
The consensus view amongst both solicitors and barristers, so far as I can see, is that the proposals, if implemented, will destroy both professions. Thousands of firms will close. Thousands will be made redundant. The Bar will collapse. Justice will be gone forever.
There are two possibilities in what the MOJ are doing. Either they mean to implement the proposals, in which case we are fighting for our lives and everything we hold dear about the system, or they have no serious intent to implement and use this as a negotiation tool.
If it is the latter it is an astonishingly dirty trick right out of the North Korean School of Diplomacy. They’re threatening to press the nuclear button so that we concede to them. We’re being threatened with a painful execution in the hope that we’ll agree to cut our own limbs off to avoid it.
After so much criticism in the press, most of it untrue, this is bullying of the worst kind.
We spend our working lives defending the vulnerable, and giving them a voice which would otherwise not be heard. It’s time we did it for ourselves and our system.
The Law Society should be standing up for all lawyers, for the rule of law, for the decisions of our judges applying that law in our historic and World-respected courts. The Law Society should be screaming from the rooftops that the services of our lawyers are infinitely more valuable than the figures paid in legal aid. The Law Society should be presenting the counter-argument loudly in every forum it can possibly reach. The Law Society should be convening emergency general national meetings to ballot the profession on what should be done, and hear from us as to what should be conceded, and where the line is drawn in the sand. Leaving it until May or later and making concessions which have not been mandated is not enough.
What the Law Society should not be doing, with the greatest of respect, is starting off with a quiet whimper of, “They won’t listen to us if we say there shouldn’t be cuts.” If that is your first bullet-point this is not a strong skeleton argument in our favour.
This is not about cuts. This is about everything we hold dear. Everything we studied and thought amounted to our system.
It should matter to all lawyers. Not just criminal defence. It should matter to every citizen.
It is the job of the Law Society to convey that message. Action is required. Many of us have started a grassroots campaign. We need you behind us every step of the way.
Fight for us.
With very best wishes,
PS. I will publicise the content of this email on my blog, which has been seen 7,100 views in the 48 hours since it was launched. That should give you some idea of the strength of feeling.
As a start might I suggest the following:
a) Publicise this issue more. Blogs like mine, but there are many others, convey our message. Crimeline’s Twitterfeed is a good place to start.
b) Email all solicitors to ask that they respond to the MOJ Consultation and don’t accept the basic premise that PCT is required.
c) Ask everyone to sign the petition. http://epetitions.direct.gov.uk/petitions/48628 11,150 signatures in a little over a week, with no official sanction. How many solicitors are there? This should be so many more.
d) Your statements on this issue and a link to the petition should be a massive banner at the top of your website, above the fold. At present no-one will find what you say unless they specifically look for it.
You might think that legal aid is a wasteful expense, used to prevent those who should rightfully be convicted and sent to prison from getting their just deserts. It’s just to benefit the criminals and their fat cat lawyers, right?
Well, quite possibly you won’t ever need legal aid or criminal defence. Hopefully not. But can you say for sure that you won’t ever need it, and neither will anyone you know or care about? Will your children or grandchildren ever need it?
Strangely, at the same time as holding the above or similar beliefs, millions of people were hooked in and transfixed by the recent storyline in Coronation Street, with the totally innocent Tyrone Dobbs being unfairly accused of domestic violence assaults by his dishonest and manipulative ex-fiancee, Kirsty Soames. Obviously that’s a fantasy (and lawyers watching TV often find themselves shouting corrections at the box, but that’s for another day) however it had enough credibility to it that people could believe in it. “Hell hath no fury…” perhaps. You can imagine such a thing happening, can’t you?
If you need proof that they do, how about a story from today’s papers: here’s one from this morning reporting that a woman made up a false allegation of rape because she was fascinated with fiction novels featuring violent rapes. You’d want to be defended if you were in that situation wouldn’t you? How about if it happened to your son?
It’s fair to say that such cases are rare, but false or exaggerated allegations which defendants need defending from are to be found in all courts, every day of the week. Most of them don’t get reported in the media. The papers tend only to report convictions. There is not such a good story in “Jury finds that defendant didn’t do what the witnesses said he did.”
The Prosecutor’s opening speech gets the front page, the Complainant’s evidence page 2, the acquittal is usually one paragraph on page 17!
The thing is that if you’re unlucky, if you cross the wrong people, you could find yourself on the receiving end.
And at that point every one of you would be saying that you want the best solicitor and the best barrister to deal with your case. Your life is on the line. You know you didn’t do it. You want to be defended. You don’t want to be told that the only representation you can have is a budget service from a lawyer you have foisted on you, who has no regard for quality.
You might feel the same if you end up in court inadvertently. Maybe you make a mistake while driving, or maybe you’re just in the wrong place at the wrong time. Maybe someone you care about, perhaps a teenage child, goes off the rails for a time and breaks the law. Obviously their behaviour should be punished, but you see the other side of them and care about them. As a parent you want them to be defended, don’t you?
I can give some examples of people who I have directly dealt with in the criminal system, and who required legal advice and representation. Some of them did not receive legal aid because they were not financially eligible, but that’s not the point. Most did, and there is an injustice for those who didn’t get help where they were in that posiion through no fault of their own.
Not all defendants are guilty, and everyone is entitled to a fair trial and a proper defence. That a defendant is innocent until the allegation is proven, on the evidence, such that the jury are sure that they are guilty is an essential protection of our liberties. And it’s an old idea, not some new European idea – a case as long ago as 1935 held that the requirement for the prosecution to prove its case was a “golden thread” running through the history of English law.
Legal aid is an essential part of preserving the right to a fair trial. It ensures that the vulnerable and those who can’t afford to pay for representation get the same standard of representation as those who are more wealthy.
Justice should be impartial, blind some say. She should not have one eye craftily open gazing on the net worth of the defendant. If Lady Justice has one hand on her Sword of Reason and Justice, and the other on the Balance Scales, she doesn’t have a spare hand to clutch the purse strings too.
So here are some examples from my own career. The details are vague enough that my clients will not be recognised. I will not enter into discussion about who they were, but they were all real people. All criminal lawyers will have their own tales. If they want to add them, suitably anonymised, to the comments, I’m sure we’d all be interested.
Can you say, for sure, that no-one you know or care about will ever be in the same or a similar situation?
Businessman dismissed an employee. Ex-employee went to the police and alleged an assault. It turned out this was not the first time the employee had made false allegations. Trial heard and jury returned Not Guilty verdict. A guilty verdict would have led to a prison sentence and the loss of the business. Entitled to be defended?
Car driver misjudged a turning and failed to see approaching motorbike. It was a relatively small error of momentary carelessness, something probably all of us have done without any ill effects at least once, but the motorbike collided with the car and, tragically, the rider was killed instantly. The driver was prosecuted for careless driving. There would be a risk of prison for this tragic but unintended accident. Entitled to have the mitigation fairly put before the court?
Client got into a dispute with their private landlord. Issues over repairs not being carried out. Client moved out. The landlord did not return the deposit so client took some property from the house to the value of the deposit, thinking this was allowed. Landlord made allegation of theft. Lacking dishonesty, so entitled to a trial? This case can apply to many other scenarios in which one party honestly believes they are owed something by someone else, or there is a difference of opinion about ownership. Such allegations are easily made in acrimonious divorces or separations.
A student, away from home for first time, was a regular in the student nightclubs. Stupidly bought a number of Ecstasy tablets for self and friends. Searched, arrested, charged and taken to court for possession of a class A drug with intent to supply. Faced a lengthy custodial sentence. Do you think their parents wanted them to be properly represented, or did they just say they were a criminal and shouldn’t be helped?
Taxi driver. Picked up lone female late at night. She didn’t have the money to pay her fare. She made a false allegation of indecent assault to cover this. Later transpired she had a history of making similar, even identical, false allegations. Anyone who works alone with the public is at risk of such a problem (and this is not the only taxi driver false allegation case I’ve dealt with).
Man bought an expensive landrover from an advert in a well-known auto sales magazine. Paid many thousands of pounds. Pulled over by police and arrested when it transpires said landrover had been stolen. Ultimately released without charge, but needed advice in police station first.
This is just a small sample of cases which I particularly remember from my own career. I could cite others, and there will be some I’ve forgotten about. If you take 6,000 other criminal lawyers, there must be thousands more tales.
Teachers facing false allegations from errant pupils. Foster carers dealing with vulnerable children who face falsities because they try to impose discipline for the first time. Office workers who find themselves in the frame because a colleague had their hand in the till. Separating couples who make allegations of theft or assault. Separated couples who make similar allegations in support of child contact proceedings in the civil courts. Then what about the respectable people who suffer a nervous breakdown and end up offending? The cancer-suffering pensioners who use cannabis to ease their pain? Even perhaps the otherwise respectable people who after a particularly heavy night, a birthday perhaps, end up in a drunken brawl; disgraceful certainly, but maybe a one-off aberration which can be mitigated?
All lives potentially turned upside down or ruined by their dealings with the criminal justice system. Sometimes blameworthy, sometimes not. But all entitled to a fair and equal hearing. You would expect it for yourself or your children.
Legal aid and the criminal justice system are here for all of us. For defendants, both innocent and guilty. For witnesses, who would rather be cross-examined by a competent lawyer than by the defendant themselves. For victims, who want cases dealt with properly and with the minimum of stress and inconvenience. For society, in preserving the rule of law and our hard-won freedoms.
You don’t know whether you might need legal aid sometime. You don’t know whether your family or friends might need it eventually.
Protect it before it is gone forever.
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.
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:
- Legally-aided criminal defendants will be deprived of the ability to choose their own solicitor. A defence representative will be allocated to them.
- 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.
- 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.
- 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.
- The proposals cover all legal aid litigation work (i.e. the solicitor side of things) including in the Crown Court.
- 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.