Lawyers fear that further cuts to criminal legal aid under the new Conservative government will lead to a dramatic decline in the quality of legal representation as well as to miscarriages of justice. The Guardian reported last week that the Criminal Bar Association (CBA), the professional body representing criminal barristers, is balloting its 4,000 members this month on taking direct action, asking them ‘how far they will go’ in opposing the new duty contracts for legal aid solicitors.
Much of the legal profession has been emphatically opposed to the legal aid reforms of the previous government, including the President of the Supreme Court, Lord Neuberger, who said that the rule of law itself might come under threat. In January and March of 2014 1,000 barristers and solicitors staged walkouts over government proposals, marking the first time that barristers have withdrawn their labour, as well as the first time both wings of the legal profession have taken coordinated, national action.
In March this year, despite previous legal successes, the Court of Appeal dismissed a legal action brought by the Law Society, the Criminal Law Solicitors’ Association (CLSA) and the London Criminal Courts Solicitors’ Association (LCCSA), against government plans to reduce the number of criminal legal aid contracts. At the Not the Global Law Summit event in London, organised by the Justice Alliance in April this year, former Court of Appeal judge Sir Anthony Hooper said, “If the Conservatives come back into power, it’s revolution time.”
Criminal legal aid fees and contracts reforms
The reforms to criminal legal aid include an overall reduction in the number of duty legal aid contracts from 1,600 to 527, along with cuts to legal aid fees received by law firms. Last year a cut of 8.75 per cent was introduced to legal aid fees, while a further 8.75 per cent cut is planned to be implemented in July this year, for solicitors working in police stations and magistrates’ courts. In October 2014, the LCCSA feared that as many as two-thirds of criminal solicitors could lose their jobs.
The Law Society’s Annual Statistics Report for 2014, published recently, revealed that the number of private practice firms declined for the fourth consecutive year, while there was a slight growth overall in the number of practicing solicitors, due to larger firms hiring. There is, it seems, some ‘consolidation’ of the market happening already, as smaller firms struggle to continue legal aid work. The LCCSA reported last year that “We’re seeing several [firms] laying off staff they can’t afford and employing cheaper, less trained paralegals”. Law Society Chief Executive Catherine Dixon said of the figures that though in part positive, “some areas such as publicly-funded legal advice are likely to remain challenging.”
Initially, proposals by the former government involved the introduction of price competitive tendering for contracts for work in all areas of criminal legal aid, except Crown Court advocacy and Very High Cost Cases (VHCCs). The reaction to these initial April 2013 proposals was very strong opposition, especially by the legal profession. Much of the opposition focused on questioning the economic case, and a concern that competition based on price would undermine quality. The Bar Council, for example, said that removing client choice (which the reforms involved), would lead to a “two tier system”, where only those who can afford it, have the right to choose.
Following a consultation the Ministry of Justice (MoJ) revised their proposals, removing competitive tendering and the restriction of client choice, instead deciding that a set number of duty contracts would be awarded based on the capacity of a law firm to deliver services at a specified quality level. These proposals still involved the proposed reduction in legal aid fees of 17.5 per cent (in two 8.75 per cent tranches), which the Law Society expressed serious concern over. The Bar Council also strongly opposed these revised proposals, arguing that “the MoJ was putting instant savings above the long-term health of the justice system.”
Government reforms “so unfair as to result in illegality”
Despite serious and sustained opposition from across the legal profession and from elsewhere, the government decided to press ahead with its revised model, as set out in the consultation paper – Transforming Legal Aid: Next Steps. However, a judicial review challenge last year to the lawfulness of the government consultation was successful, with the judge finding that failures in the consultation process were “so unfair as to result in illegality”. The challenge centred upon the refusal of the government to publish the research which it based its financial modelling upon, despite requests to do so.
When interviewed by the Guardian last year, the President of the Law Society, Andrew Caplan, said that the government did not take on board the warnings made in the two research reports the government commissioned (& based their modelling upon), which were by Otterburn Legal Consulting and KPMG. At the time of the introduction of the first round of legal aid fee cuts, the then Justice Secretary Chris Grayling said that the government would not be seeking further savings from criminal legal aid.
As a result of the judicial review, in September 2014 the High Court ordered that a new consultation about the duty solicitor contracts should take place. In its response to this final consultation, the MoJ increased the duty solicitor contracts from 525 to 527, introduced a payment for travelling times in excess of 1.5 hours, yet still intend to implement the second fee reduction in July 2015.
Profession at a crossroads
The Law Society and others argue that as a result of the closure of law firms and a significant lack of solicitors to carry out legal aid work, defendants will lose their ability to choose their law firm, and in many cases will be represented by unqualified paralegals. This, Andrew Caplan has argued, may lead to the failure of the government “to meet its legal obligations to provide duty solicitor services to all who ask for them.”
In late March 2014 it was reported that further industrial action by criminal barristers had been called off due to an agreement reached between the government and leaders of the criminal bar on proposed cuts to the advocates graduated fee scheme, which were ‘indefinitely delayed’. It is uncertain what stance new Justice Secretary Michael Gove will take on this agreement.
Following the dismissal by the Court of Appeal in March of the further legal challenge to the legal aid contract reforms, as Tom Smith over at the Justice Gap has blogged, the legal profession “is now at a crossroads”. Prior to the election the government sought to press ahead with its proposed second cut of 8.75 per cent in legal aid fees in July this year, as well as the huge reduction in contracts.
With the new Justice Secretary Michael Gove making his priority the abolition of the human rights act in 100 days, the continuation of the former government’s attack on legal aid seems very likely. With less people qualifying for legal aid now (due to reforms), and fewer firms with solicitors able to represent clients, the unmet need will very likely lead to a rise in people representing themselves in court – so-called ‘litigants in person’, as has happened to a very worrying extent as a result of reforms to civil legal aid.
Now more than ever it is of vital importance that we present a united front against government attacks on our basic rights, and highlight a positive vision for an alternative system. Via the joint union campaign Speak up for Justice, the TUC will continue to campaign for a properly funded, integrated, publicly owned, accessible and accountable justice system. We also work with partners such as the Justice Alliance.