Guy Gozem

QC at Lincoln House Chambers | Tower 12 | Manchester

LHC response

Lincoln House Chambers Response to Consultation CP14/2013

“Transforming legal aid: delivering a more credible and efficient system”

We are a chambers of 14 QCs and 50 junior barristers; many of us hold part-time judicial office; we do a variety of work, including prosecuting and defending in legally aided criminal cases. Although we are based in Manchester we work all over the country, and sometimes internationally. Lincoln House Chambers was established in 1978. This is our considered and joint view of the proposals and of the consultation process.

Lincoln House Chambers

Tower 12

The Avenue North

Spinningfields

Manchester

M3 3BZ

www.lincolnhousechambers.com

Introduction

Setting the Mood Music

The Ministry of Justice press releases of 9th April, produced these headlines on the 10th April in the Daily Mail – Link to article

Legal aid payouts to fat cat lawyers will be slashed by a third, says Justice Secretary

Chris Grayling says best-paid QCs get £500,000+ a year from taxpayer

But in high cost cases lasting 91+ days he wants payments cut by 30%

Current fees are £500/day for advocacy, plus £150/hour for preparation

This is a depressingly confrontational style of politics. It might well be in keeping with this Lord Chancellor’s reputation but it seems to us to be an inappropriate way to launch a ‘consultation’. Some of us had been naïve enough to hope confrontation of this sort might be a thing of the past.

Lord Carter had told government

“implementation of the reforms would be significantly helped if stakeholder relations were strengthened with the legal profession and other agencies operating in the justice system”

The Justice Committee had told them

“One of the pre-requisites for justice to be transformed successfully is for all involved in the delivery of services to work more effectively with other partners…‘ confidence building…could best be achieved on the part of the Government by being flexible…

There has been a catastrophic deterioration in the relationship between suppliers, their representative organisations, and the LSC. Unless the relationship improves, we do not see how implementation of these reforms can be successful. We urge all involved in legal aid reform to re-engage in a more constructive dialogue.”

‘Restoring public confidence’ was the Lord Chancellor’s public justification for these money saving reforms. Yet there is no published evidence of such a loss of confidence; the Lord Chancellor claims to have received some ‘letters and emails’. He hasn’t said how many and he hasn’t published them. Contrary to his claims, a ComRes poll, commissioned by the Bar Council, shows that 7 out of 10 (71%) of the British public are concerned that cuts to legal aid could lead to innocent people being convicted of crimes they did not commit. The poll also shows that two-thirds (67%) of the British public agrees that legal aid is a price worth paying for living in a fair society.

The Lord Chancellor is no doubt wise enough to know that you reap what you sow; it was his decision to confront rather than to engage. He has achieved an unprecedented level of confrontation and opposition to his proposals. It has come from many quarters, and is not limited to those who practice legally aided work. Yet he has remained majestically dismissive and spectacularly vague. He has been unable to produce any evidence as to the efficacy of the proposed reforms when faced with informed criticism: for example –

Mr. Grayling dismissed warnings by Sir Anthony Hooper, a former Lord Justice of Appeal, who last week said that some measures contained in the Transforming Legal Aid proposals would be “absolutely devastating” for Britain’s legal system and result in dangerous miscarriages of justice.

“I understand that some lawyers might be worried about how this might affect them and what the future holds. But like every other business or profession over the last ten years, we need them to adapt to the circumstances around them, to modernise, and become leaner. The changes we’ve proposed won’t affect people getting a fair trial, and they won’t destroy the independent criminal Bar. And I can certainly assure you they won’t devastate Britain’s criminal justice system, of which we so rightly proud.”

We believe the present proposals will be absolutely devastating and will result in miscarriages of justice. We prefer the informed view of Sir Anthony Hooper. We do not find the Lord Chancellor’s response reassuring.

Lincoln House Chambers has no interest in confrontation for its own sake; but we do share a passionate interest in maintaining access to justice and the rule of law. We acknowledge our interest in the future of the legal profession. We have huge experience and an intimate knowledge of the workings of the criminal justice system. The Lord Chancellor might dismiss the fact that we oppose the introduction of Price Competitive Tendering as being motivated purely by self-interest. He would be wrong to do so. Expertise is a product of experience; in this case, experience of the Criminal Justice System. To dismiss informed criticism as purely the product of self-interest is facile; where else is informed criticism likely to come from?

The nature of the consultation – “not the principle, just the model.”

Central to these proposals is the intention of government to introduce PCT.

At a meeting on 20th March 2013, Dr Elizabeth Gibby said that

‘the consultation would not be on the principle of competitive tendering; but would seek views on a proposed model.’

Dr Gibby explained that Government had introduced competitive tendering into other areas of Ministry of Justice business, including the criminal legal aid telephone advice line, prisons, the defence solicitor call-centres, and the new telephone gateway for civil legal aid. She added that in his 2006 report, Lord Carter of Coles had made a compelling argument for a market-based approach to the criminal legal aid market. This would be the fifth attempt to introduce competitive tendering into the system.

On 20th May 2013 was interviewed in the Law Gazette –

‘The consultation represents the MoJ’s ‘clear direction of travel’, Grayling adds, but he is at pains to point out that the consultation process is ‘genuine’…  ‘unless somebody’s got a stunning alternative to PCT’, it will go ahead in some form. The fiscal imperative remains and ‘not saving the money is not an option’.’

Despite the ‘design’ of the consultation questions, and the desire of both Dr Gibby and the Lord Chancellor to limit responses to ‘model’ rather than ‘principle’, we do not feel able simply to accept that PCT should be introduced in any form. We believe it will be disastrous, and that there are very good reasons why it has not been implemented before.

We will also draw on our experience to make constructive and helpful observations and suggestions that will result in sustainable ways of saving money. The cost of the current proposals will be greater than any ‘headline’ saving.

Reasons for rejecting the proposals – 1

Previous advice to government on market-based reform

Dr Gibby’s view is that Lord Carter made a compelling argument. The following material comes from responsible individuals and bodies commenting on Government’s earlier proposals to introduce market-based reform.

The Attorney General

Dominic Grieve QC MP, now the Attorney General, said in 2004 –

‘I cannot see that competitive tendering in criminal legal aid makes sense – legal aid contracts do not pay market rates. If firms want to win a competitive tender, the only way they will be able to undercut each other is by steps that could open them up to potential allegations of incompetence.’

‘There are ideas creeping into the system that treat legal aid as if it is just about the economic provision of a service. That approach will lead to problems with lowered standards.’

In 2009 he was reported in a Law Gazette article as follows –

A Conservative government would suspend the national rollout of best value tendering (BVT) to enable a proper evaluation of the controversial new scheme… pilots due to begin in Greater Manchester and Avon and Somerset would be allowed to proceed. However, the phased national rollout – currently planned to begin in June 2010 – would be delayed, pending a full evaluation of the tendering process and its impact.

‘We really should be concerned about the lasting damage that could be done if we’ve got this wrong. It could permanently damage the provision of criminal legal aid.’ He questioned whether the LSC could manage the process and whether in reality there were any savings to be made.

We endorse the comments; we agree with the assessment of risk.

Pilots

The Justice Committee’s ‘Constitutional Affairs Third Report’ –

240…We would prefer to see competitive tendering — insofar as that is a solution to the problem — implemented directly, once there has been adequate piloting.

241. We are extremely concerned that the Department is trying to engage in such a far-reaching change to the structure of Legal Aid on the basis of little or no evidence about…how its plans for a solution are likely to affect both suppliers and clients. We fear that if the reforms go ahead there is a serious risk to access to justice among the most vulnerable in society.

The Lord Chancellor’s current response –

‘The last Government was obsessed with pilots. Sometimes you just have to believe in something and do it… I am completely confident at the end of all this we will have a perfectly successful criminal legal aid industry, both on the solicitors’ side and the barristers’ side.’

Given that the Lord Chancellor dismisses the idea of pilots, one might reasonably expect to look at the Impact Assessments that accompany this consultation to learn how he arrives at the conclusion of which he is ‘completely confident’.

Impact assessments

Particularly relevant is the advice that was given to Government on 17 July 2012 in a report entitled ‘The budget and structure of the Ministry of Justice’. The Committee wrote –

‘We recommend that the Department further improves its analytical function so that any future policy proposals are supported by high quality Impact Assessments that enable the fullest public scrutiny.’

‘Transforming Legal Aid’ deals with Impact assessments at Chapter 8, where reference is made to Annex K. Annex K includes reference to BAME managed providers and BAME clients being disproportionately impacted by the proposals. On each occasion the justification is – ‘we believe the proposal is a proportionate means of achieving the legitimate aims set out in section 4 above.’ Section 4 says ‘The primary objective of the proposed reform package is to bear down on the cost of legal aid, ensuring that we are getting the best deal for the taxpayer and that the system commands the confidence of the public.’ The separate impact assessments do not deal with BAME issues.

This absence of any – or any proper Impact Assessments referable to BAME firms and clients – we would argue is quite extraordinary. By way of background, the Legal Services Board report “Impacts of the Legal Services Act – (2012 Interim Baseline Report)” had included the following passage –

‘LSB analysis of SRA data suggests that a greater proportion of BME firms undertake work in immigration, crime, and family compared to non-BME firms. Furthermore, 23% of all BME firms derive more than 50% of their income from public funding compared to just 7% of non-BME firms.’

Earlier advice to Government on the implementation of these proposals specifically addressed the vital importance of these matters being fully addressed; the LSB analysis only serves to underline its importance. In 2007 the Justice Committee reported –

216. It is generally accepted that BME clients seek legal help or representation predominantly from BME solicitors…30.1% of civil BME clients were assisted by BME majority managed providers.

217…our witnesses emphasised the benefits inherent in the provision of publicly funded legal advice to BME clients by providers of the same ethnic background…The consequences of the anticipated mass exodus of BME practitioners from this field are important – and not just simply as to the issue of right to choice of representation. There may well be an increase in costs because the advantages of BME practitioners representing BME clients are often “hidden” and not empirically quantified…Close cultural affinity with the lay client means confidence is established very early on. This often means advice is more readily accepted and at an earlier stage. This then avoids the need for (often lengthy) contested hearings. BME solicitors regularly conduct appointments with clients, whether in person or on the telephone, without recourse to an interpreter. This is more efficient and represents a significant saving in terms of costs.”

Government should know that the above paragraph accords entirely with our experience. It also underscores precisely what is wrong with these proposals; the abolition of client choice will be hugely counter-productive, and not just in relation to BAME providers.

We anticipate that hundreds of responses will be urging Government that it has failed to quantify the “hidden” savings delivered by the current system – confidence, choice, early acceptance of advice and the avoidance of contested hearings. You will destroy, for example, the substantial savings being delivered by the Early Guilty Plea scheme.

Sailesh Mehta, a barrister, summed up the concerns of many legal aid practitioners when he told the Justice Committee –

“One of the difficulties that we have with Lord Carter’s proposals is that the starting point is that these small firms are uneconomic and therefore bad for business. We do not accept that, we say that these firms are, in fact, very good value for money and add a level of assistance to the community which cannot be put into monetary terms.”

The Committee reported –

221. The LSC …assured us that … “we are confident of being able to conduct adequate race impact assessments and complying with our statutory obligations in this respect”.

222. BME suppliers provide an essential link between BME communities and the legal world. They can contribute significantly to community cohesion and access to justice for BME clients. The current reforms proposals may have a disproportionate impact on BME clients who form the client base of most BME-controlled legal aid providers. This may limit access to justice for members of ethnic minorities.

223. It is imperative that reforms potentially affecting BME clients disproportionately should be robustly assessed on the basis of comprehensive and reliable statistical information. We appreciate the LSC’s efforts in collecting the relevant client data and hope that they will contribute to a comprehensive and robust impact assessment of the criminal legal aid proposals.

229. We are concerned that some of the reform proposals may contravene the prohibition of indirect racial discrimination under the Race Relations Act 1976 as subsequently amended. Some of the reform proposals, notably the introduction of minimum contract sizes, leave us in doubt as to whether they are a necessary and proportionate means to achieve the intended objective, which is the legal test.’

When setting out his proposals for legal aid reform, and for BVT in particular, Lord Carter stated that:

‘Changes to the current arrangements for the procurement of legal aid services should recognise the needs of all groups and ensure that there is an appropriate, high quality and diverse supplier base.’

These concerns have been completely ignored. Where are the detailed Impact Assessments? Why are they missing, given that the LSC was confident 6 years ago that it could produce them?

We note that some of the Impact Assessments are wrongly denominated “Enactment” stage as opposed to “Consultation” stage as they should be. The Lord Chancellor has put his signature to an inappropriate declaration, namely – “I have read the Impact Assessment and I am satisfied that (a) it represents a fair and reasonable view of the expected costs, benefits and impact of the policy, and (b) that the benefits justify the costs.” The appropriate declaration at consultation stage is – “I have read the Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options.”

In theory, at least, the policy has not been determined until after the consultation responses have been received and considered.

We believe – as did the Justice Committee – that these proposals require much more than an assertion by a Lord Chancellor (who has already set his face against pilots and who has ignored the Justice Committee’s recommendation for full Impact Assessments) to the effect that –

‘The last Government was obsessed with pilots. Sometimes you just have to believe in something and do it… I am completely confident at the end of all this we will have a perfectly successful criminal legal aid industry, both on the solicitors’ side and the barristers’ side.’

That bold assertion from the Lord Chancellor is all we have to differentiate this 5th attempt at reform from the earlier failed attempts. It does not allow ‘the fullest public scrutiny’. It is simply not good enough.

Cost, Value and Risk

Justice Committee 2007 on ‘waiting costs’ –

‘….there should be an economic incentive for the Government to improve police station procedure, court listing practice and case preparation by the CPS or local authorities in order to reduce waiting costs to the legal aid budget.’

This conclusion raises a fundamental point. At present there is no incentive on Government to reduce any of the costs that fall on the legal aid budget. Instead of examining with care the unintended consequences of cuts, Government persists in applying them ‘across the board – as if one set of cuts will not have an effect in another area.  We welcome the Justice Committee’s recognition of this fact, here and elsewhere in their reports. It is a conclusion with which he wholeheartedly agree.

Practitioners know as a fact that the vast majority of inefficiencies in the system are caused by Government policy itself. Government must properly assess the consequences of its proposals before implementing them; and must take more responsibility for the state of affairs that its past policies have caused.

Far and away the greatest problem currently is the fact that the CPS is under-resourced. While the individuals working for the CPS may be doing their best, their case files are grossly under-prepared. Disclosure problems, for instance, affect cases regularly, and lead to adjournments and loss of court time.

Government policy in relation to interpreters has had a disastrous effect on the efficiency of the courts; courts are regularly delayed by the late delivery of prisoners. As practitioners we see such problems regularly; we do not see defence practitioners stringing out cases – and neither do the Judges, who simply would not stand for it.

Justice Committee 2007 (cont’d) –

20.  We appreciate that…it is extremely difficult to draw conclusions about how the firms are going to respond to a very different set of circumstances. In the light of this uncertainty and the general lack of data, the intention of a nationwide imposition of fixed fees followed rapidly bycompetitive tendering across the entire legal aid system is a breathtaking risk.

This risk might be justified where the whole system is in utter crisis but large parts of the system are stable in cost terms. We recommend a reconsideration of the plans and the adoption of a much more measured, risk-based strategy for reform.

None of the uncertainty referred to in the above quote has been removed; the provider base is currently economically fragile; the system is not in utter crisis; according to the latest figures costs are stable if not decreasing. There is absolutely no need to take this “breathtaking risk” with the Criminal Justice System.

A more measured strategy for reform would be for Government to move away from confrontation and engage with the profession in identifying the true current drivers of cost in the legal aid system (for which presently each side seems to regard the other as being principally responsible). As the Justice Committee has repeatedly observed, that is the route – the only route – to a sustainable settlement.

By adopting a ‘whole-systems’ approach, research which assists policy-makers and practitioners in improving the processing of cases could achieve not only a reduction in the legal aid spend but also cost-savings for other criminal justice agencies.

The Justice Committee [Third Report – Government’s proposed reform of legal aid] in 2011–

“‘Access to justice and “value for money” for publicly funded legal work… are not only about the quantity of legally aided acts, but equally about the quality, nature and adequate geographic spread of those acts of assistance…. only a properly resourced supplier base will be able to continue to provide the quality legal advice and representation to which legally aided clients are entitled.

Providing effective access to justice is a basic tenet of the rule of law and a core characteristic of the welfare state… it is artificial to separate the interests of the clients from the practitioners delivering advice and representation services. If practitioners cannot continue to provide the service due to adverse changes in the way that the services are procured, then they will continue to leave the legal aid ‘profession’ and there will be no supplier base to serve the clients…”

The swingeing cuts that are part of these proposals come on top of earlier cuts. The Government believes that practitioners will continue to provide services as before. We fundamentally disagree – just as the Justice Committee warned the supplier base will be decimated. Such residual goodwill as currently remains will disappear.

The Lord Chancellor

From the Select Committee on Constitution Sixth Report –

71.  We believe that the role of Lord Chancellor is of central importance to the maintenance of judicial independence and the rule of law. Prime Ministers must therefore ensure that they continue to appoint to the post candidates of sufficient status and seniority.

74.   We sincerely hope that constitutional affairs remain central to the Ministry of Justice’s responsibilities and are not downgraded in importance compared to the other duties of the Ministry.

83.  The integrity of the legal system depends on it being properly funded. We consider it one of the vital tasks of the Lord Chancellor to ensure that the Courts Service and Legal Aid budgets uphold that integrity… we do urge the Lord Chancellor to ensure that it receives maximum protection from short-term budgetary pressures upon and within the new Ministry.

We share the Committee’s concerns; and we urge the Lord Chancellor to ensure that the Legal Aid budget receives maximum protection from short-term budgetary pressures upon and within the new Ministry. The recent publication of volume and value figures indicate that the hitherto un-quantified savings from the last round of cuts is substantial; it may well amount to in excess of £150m. These proposals are designed to save £220m.

Reasons for rejecting the proposals – 2

Current advice to government on market-based reform

The removal of choice

From the Legal Services Consumer Panel response to the consultation –

“The Legal Services Consumer Panel is firmly opposed to the proposal to remove client choice. We consider this is unfair in principle, is not the most effective means of achieving the intended competition benefits of the proposals, goes against the grain of government policy for other public services, risks undermining quality and vulnerable clients may suffer most.

Confidence in the legal aid system may be undermined if people accused of a crime are allocated legal representation by an agency of the state which is seeking to convict them. Consumers value choice and our data suggests they exercise choice in the legal aid market. Consumers are better placed to make informed choices in the criminal arena due to the high incentives and as some have past experience to draw on…Allowing consumers to choose their lawyer would help to safeguard quality as poor providers know they will be punished by the market. The proposed model has other inherent quality risks, e.g. the heavy weight on price in the tender process and the small number of contracts in many procurement areas. It is particularly invidious that consumers cannot switch mid-case (unless in exceptional circumstances) and have to be reallocated an alternative provider by a system which has already failed them…

Vulnerable clients benefit from having a pre-existing relationship with their provider, while clients may more readily accept unpalatable advice from a lawyer they know and trust. Retaining choice would preserve the resulting time and cost savings to the criminal justice system and spare victims and witnesses the ordeal of appearing in court.”

The Lord Chancellor has justified the removal of client choice –

‘I don’t believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills. We know the people in our prisons and who come into our courts often come from the most difficult and challenged backgrounds.’

We do not agree that that amounts to a justification; it’s actually more of an insult. It’s an insult not just to people who are from ‘difficult and challenged backgrounds’ but also to the public in general. To anyone and everyone who is arrested.

For the Lord Chancellor to justify denying people their right to choice on the basis of their mental health or social status is distasteful. It simply cannot be right for a Lord Chancellor, charged with a statutory duty to uphold and protect the rule of law, to say “Although you have a right to choose, we the state can take that right away from you, because we think you might well make the wrong choice.”

Not everyone who will be affected by the denial of choice falls into the categories mentioned by the Lord Chancellor. Many people are wrongly arrested, are never proceeded against, have cases against them dropped after legal advice, are tried and acquitted, and are perfectly decent individuals with families, jobs, many of them people of good character.

We have already made some observations about the negative impacts that will follow from the removal of client choice. Below are our fuller observations.

Client choice has always been the principal driver of quality and competition. However unsophisticated clients might be, they know whether they want to go back to, or recommend a lawyer to others. The proposal for PCT and the random allocation of clients will restrict competition to the moment of the bid. Thereafter it’s plain sailing for the provider; the clients keep coming whether they like it or not.

The importance of the provider client relationship is recognised by lawyers and was specifically acknowledged by Lord Carter in his ‘Review of Legal Aid procurement’ –

‘Clients need to have confidence in their legal representative in order for justice to be fair and effective’.

Our practitioners know that there is a wide variety of factors that allow the Courts to function as effectively as they do. Client confidence is paramount. Some defendants are repeat offenders who have established a strong connection with a particular firm. Others might be friends or relatives who have received a recommendation. At all events, they are with the particular provider with a degree of confidence. Experience of the client and a relationship of trust allow for the efficient disposal of cases.

The Northern circuit – via HHJ Globe QC, the former Recorder of Liverpool – was responsible for the development of the Early Guilty Plea Scheme. This scheme, which has been rolled out progressively around the country is responsible for saving millions of pounds in CPS and legal aid costs. These proposals put those savings in danger; in fact, the removal of ‘choice’ is likely to almost extinguish them.

The starting point for understanding why is to throw off the mindset that clients are ‘units of supply’ in a system designed to deliver ‘economies of scale’, and to remember that clients are people, often with families, almost certainly with friends, who live in a particular community. Local solicitors serve those communities, and their reputation for good, bad or indifferent service determines whether they prosper or go to the wall.

It is a fact that over 60% of people arrested currently name the solicitor they want, rather than having one randomly allocated to them. It is not difficult to understand that a client is much more likely to accept advice – however unpalatable – from a trusted advisor. The EGP scheme – as we know on this circuit from hands on experience – works precisely because of that trust. Take away that trust, and the preparedness to accept appropriate advice will diminish substantially, and with it the effectiveness of a scheme that is currently saving the taxpayer millions of pounds.

This is but one example of the shortcomings of this consultation paper; throughout, it pays no attention to the unintended consequences of proposals which might appear to be cost-saving at first blush, but which will have very costly and adverse consequences when considered by those with experience of how the courts, and the people who use them, actually function.

The introduction of a conflict of interest

The restructuring of the AGFS scheme is aimed at encouraging the efficient and early resolution of cases. The MoJ believes that this can be achieved by replacing the fees for EGPs, cracked trials and trials with single fee at the current cracked trial rate; and by reducing refreshers by around 35%, for first 3 days of trial; thereafter tapering (reducing) them progressively for as long as the case might continue, until a daily refresher might be reduced to less than £20. The estimated savings from this are assessed at £15m.

The Ministerial Foreword says

“For criminal advocacy, we intend to reform the fee structure, to ensure that cases are resolved as quickly as possible, which will mean less time required of lawyers, and lower costs to the legal aid bill.”

The proposed fee structure will achieve none of its aims. There are a variety of reasons why that is the case. What is being proposed is both an unreasonable and unjust solution to a problem that in reality does not exist; it is a ‘solution’ that will induce an unnecessary – and very dangerous – conflict between the interests of clients and the interests of providers who will require a ‘return on investment’.

Judges have case management powers; they use them. They have the power to limit unnecessary or prolix cross-examination; they use it. They do not tolerate time wasting in their courts; they prevent it. They have the power, when advocates fail to obey their directions, to make a ‘wasted costs order’; they rarely make them. It is surely not being suggested that Her Majesty’s Circuit Judges are ignoring their obligations? We know they do not. The management of cases, in particular how evidence is presented and at what pace, whether a particular piece of evidence is necessary or could be dealt with by way of admissions, whether interviews could and should be shortened are all matters particular to an individual case. They should be left to the Judge trying the case to determine – not dealt with by a grossly unfair fee mechanism.

The CPS (or other prosecuting authority) determines the length of a case. They decide how many defendants will be charged in one indictment; how many witnesses will be called and how many exhibits will be relied on. If the Judge regards the trial as unwieldy, or likely to last too long, he has case management powers to order severance.

It is no doubt for these reasons that Lord Thomas of Gresford made this contribution to the Queen’s speech debate:

“The intention is presumably to add to the incentives to defendants to plead guilty.”

Advocates are already under a professional duty to advise clients as to the benefits of an early guilty plea.

While this reform is proposed in the name of “efficiency”, it is likely to have an opposite and very dangerous effect, namely the danger of a real conflict arising between the interests of the client and the advocate/provider. That this not been recognized further demonstrates a sad lack of understanding of the realities of criminal practice in the Crown Court, the duties of an advocate and the responsibility that a business has to its shareholders.

Lord Thomas, from the same speech: –

“The effect of that is to create conflicts of interest between the advocate and his/her client. The advocate is punished financially if the client pleads not guilty and goes to trial. Not only is that wrong in principle, it is counterproductive: if defendants know that the advocate has a conflicting financial incentive, they will not listen to him when he tells them to plead guilty, because it will be in his financial interest to do precisely that. Hence, there will be more trials, at greater expense.”

The example holds good for a member of the Independent Bar. We would feel obliged to declare that interest to a client. How could we not?

But what of the position of an employed advocate working for a business with shareholders. The managers have a duty to do the best for the shareholders, which means to maximize the return on their investment. The advocate has a duty to the client. Which of the 2 masters will be served? It is a quite unnecessary reform, ill-considered and dangerous reform. It should be withdrawn immediately.

The effect of removal of choice coupled with the fee reforms.

Government proposes to prevent clients from choosing a provider. It also proposes to place advocates at a financial disincentive if the conduct a trial at all; and the longer the trial, the greater the financial penalty.

Has anybody concerned with these proposals actually considered the combined effects of these 2 proposals? We do not believe that they can possibly have done. The damage that will be done by removal of choice has been illustrated; as has the damage that will be done by the fee reforms.

Government will have produced a situation where the client is forced to use a particular provider; and that provider will be forced to tell the client that he, the provider, has a financial incentive in the client pleading guilty. The longer the potential trial might last, the greater the incentive will be. We can predict the outcome, based on our experience – there will be a huge increase in litigants in person. Clients will simply decide that they might as well represent themselves. When they do, it will be immensely expensive in terms of time and money. Not to mention the effect on victims and witnesses. These are costs to the Criminal Justice System that have not been recognized, considered or quantified. Smile at the potential consequences if you have a minute. http://bit.ly/14nYcjn.

But it won’t be funny in reality.

Cost – a truer picture.

The savings Government wishes to make are of the order of £220m.

Between 1996 and 2013 the cost of legal aid has remained remarkably constant. The latest figures MoJ is now spending almost precisely what it spent in 1996-7 (£1,966m/£1,926m).  These are figures that take no account of inflation.

But with inflation taken into account in 2012-2013 the cost to the taxpayer of funding on the criminal legal aid aspect of the budget is actually 25% less than it was in 1996-7.

The latest figures released which cover the first 9 months of the year indicate that the cost continues to decline – reflecting the effect of the last round of cuts, and the reduction in volume of cases. In other words, the cost to Government is continuing to decline.

Nowhere else, we believe, has this been achieved. It has been achieved while maintaining the quality and reputation of British justice. But it has been achieved by cutting costs to the bone, and by reliance on the goodwill of legal aid practitioners.

We know that there is close to a billion pounds outstanding in unrecovered fines, legal aid payments and confiscation orders. In Lancashire alone at the end of 2011 the figure was in excess of £3m in fines alone. It is tempting to suggest that the MoJ should put its own house in order before returning to the legal profession and implementing further cuts. There is money available and there are savings to be made – there are other ways. These proposals are and cuts are reckless and shortsighted. They will increase the overall costs to the MoJ in ways that we have identified.

PCT has not been implemented despite repeated attempts, not simply because lawyers kick up a fuss, but because there are real practical problems and difficulties with the scheme and its consequences. Those problems have been repeatedly pointed out to Government; Government has done nothing to address the issues raised but now says it will simply implement PCT if nobody, in 8 weeks, comes up with a ‘stunning alternative’.

Government has had the 7 years between 2006 and 2013 to refine the proposals. It hasn’t bothered. It has instead given the profession 8 weeks.

Some Constructive Proposals

We make the following constructive suggestions to the Ministry of Justice

  • Do not continue to believe that savings that might be made in one area won’t have an effect elsewhere – the Interpreters’ contract is an example. No doubt it was not considered that this contract would have such an adverse effect on trials in the Magistrates and Crown Courts. But it has – and it has cost millions. Hundreds of court days have been lost as a consequence of this attempt to save money.
  • The underfunding of the CPS is causing huge problems at the Crown Court. Reducing funding for the CPS saves money, but the problems caused by the savings mean that the MoJ is a net loser.
  • Allow the use of restrained funds instead of making the public pay for representation through legal aid.
  • Make it compulsory for every limited company to have in place a Directors and Officers insurance policy that will cover their legal costs – thus removing them from legal aid.
  • The 2 simple steps above will substantially reduce the alone will substantially reduce the cost to the legal aid fund of many of the cases in the VHCC bracket.
  • Remove the necessity for everybody to apply for legal aid. The MoJ is effectively forcing everybody to do this by removing the right to a costs order for an acquitted defendant for anyone who hasn’t applied. It adds administrative costs needlessly.
  • Consider the billions spent bailing out banks and bankers – who were negligent, grossly negligent, reckless, greedy and dishonest. They were hardly vulnerable, and they weren’t from difficult or challenged backgrounds. We believe the people who will suffer as a consequence of these cuts are far more deserving of society’s assistance and Government money than any banker. And we are confident that most people agree with us.
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This entry was posted on June 3, 2013 by in Transforming Legal Aid.
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