Evidence free policy making?
To borrow the phrase used by Sadiq Khan MP at the demonstration outside Parliament organised by the LCCSA on 22nd May 2013, the Government proposals for transforming criminal legal aid are an example of evidence free policy making. In the foreword to the consultation paper, the Lord Chancellor makes a number of assertions. Are any of them backed up with any evidence at all? This is clearly an important question as they form the basis of why the MOJ considers the introduction of PCT and the other changes in the document to be a “financial necessity”?
1. “Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system.”
We all agree with this opening comment. The problem is that the proposed system will do the exact opposite. Removal of client choice will lead to a lowering of quality for those who cannot afford to pay for their own lawyers. We may have developed a two tiered legal system as a result of 15 years of continual cuts and re-structuring but under these proposals it will become very much worse as those not able to pay will be allocated to and stuck with companies acting for them who they did not choose and for whom a trial will be a financial inconvenience. Even if you choose to fund a lawyer privately and win, you will not recover any of your costs if you would have been financially eligible for legal aid and will only recover costs at legal aid rates if you were financially ineligible. Justice should not just be for the rich. At the moment it is not, but under PCT it will be.
2. “Unfortunately, over the past decade, the system has lost much of its credibility with the public”.
When pressed by Catherine Baksi in his recent interview with the Law Society Gazette, Mr Grayling admitted that he had no actual evidence of this but had received a lot of letters and emails apparently unrelated to criminal legal aid. On the other hand the Bar Council commissioned a poll by ComRes which found that the public were largely supportive of criminal legal aid as a necessity in a civilised society.
The poll found that 71% of the respondents were concerned that cuts to criminal legal aid could lead to innocent people being convicted of crimes they did not commit if forced to use the cheapest defence lawyer available. It also found that 67% agreed that legal aid was a price worth paying for living in a fair society and 75% felt that the poorest would be hit hardest by the proposed changes. Furthermore 68% agreed that at less than 0.5% of annual government spending, “legal aid is a worthwhile investment in our basic freedoms”. This is hard evidence not unsubstantiated comment based on receiving a few emails.
3. “Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid.”
There are three points here. Criminal legal aid does not deal in frivolous claims. He is referring it seems to actions by prisoners or potential judicial reviews. Lawyers will take a view on certain claims and decide whether they are of sufficient merit to warrant public funding. This does not mean that every case taken on will win. Indeed it should not even be close to that as lawyers should be challenging the treatment of prisoners and seeking to hold public bodies to account, especially this Government who are regularly on the end of the judicial reviews of which they seek to limit the funding. Is there not just a slight conflict of interest here? In many judicial review cases, agreements are reached out of court and the matter is never tried. This does not mean that the claim is frivolous. A letter to the Telegraph by 90 eminent QC’s who engage in judicial review work deals with this point far more eloquently than I would be able to do (http://www.telegraph.co.uk/news/uknews/law-and-order/10085014/Leading-barristers-warn-over-legal-aid-cuts.html).
“Wealthy criminals” obtaining legal aid to fight their cases is a subject which is bound to draw some public attention. Those old enough may remember when legal fees could be paid from restrained funds and often were used to fund a defence thereby not troubling the legal aid budget. I cannot now recall which Government legislated so that restrained funds could not be used and the “wealthy defendant” had to turn to legal aid – they had no choice. A reversal of this restriction would most likely be welcomed by most although I would add the caveat that if acquitted all funds paid out should be reimbursed by the State. However, I cannot find mention of it in the consultation paper.
Cases which rack up large fees for a handful of lawyers way above what senior public servants are paid – it beggars belief that it can be a serious reason fundamentally to change a system to deal with a few large bills from a few defence lawyers working on very large and complex cases. If the Crown chooses to prosecute people and serve a room full of evidence, what are the defence lawyers to do but read it? It is called defending your client. I cannot understand why, if this is a major issue, we need to reduce the fees for defending the vast majority of small cases in both courts where the fees are already so small that further cuts are akin to hacking at the bone rather than trimming away any perceived fat.
I am equally baffled by the reference to the pay of senior public officials as it seems totally irrelevant. If I wanted to buy a pound of apples, would I be complaining because it cost more than a pound of pears? I suspect that these senior public officials, whoever they may be, are likely to be paid a fixed salary possibly in six figures, be able to claim expenses from public funds, be entitled to pensions at public expense and even in some cases live in grace and favour accommodation. There are not too many criminal defence lawyers who have a flat in central London part funded by the public because they occasionally work late and could not possibly be expected to take a taxi the 17 miles home to their house.
4. “Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world.”
In my book “spiralling out of control” in this context can only mean the cost of the system is increasing year on year on year at a great rate. This is something that must be easy for the Government to prove and no doubt they will have looked at the historic figures before embarking on the drafting of the consultation paper and letting the Lord Chancellor make such a bold comment.
Surprisingly there is no single source for these figures but the LCCSA has collated them from various MOJ and LSC documentation. Guess what? The spiral is downwards. The figures for 2001/2 to 2008/9 come from the Parliament website and show an increase from 2001/2 to 2003/4 but then the figure starts to drop and continues to drop and drop and drop. The figures are as follows:-
2001/2 £1.21 billion
2002/3 £1.31. billion
2003/4 £1.37 billion
2004/5 £1.35 billion
2005/6 £1.33 billion
2006/7 £1.26 billion
2007/8 £1.23 billion
2008/9 £1.21 billion
2009/10 £1.2 billion (source LSC press release)
2010/11 £1.14 billion
2011/12 £1.08 billion (PCT consultation document)
2012/13 £1.025 billion – projected figure in LSC business plan 2012/13 but likely to be as low as £950 million when finally published after the close of the consultation.
2013/14 £0.941 billion – projected figure from LAA 2013/14 business plan
What should also be borne in mind is that these figures include VAT so the Treasury gets back 15%, 17.5% or 20% depending on which year you are looking at. This means that when VAT went up to 20% from 17.5 % on 4th January 2011, there would have been an upward pressure on the cost of legal aid. The exact figure is hard to calculate but 2.5% of £1 billion is £25 million. In fact the figure for 2012/13, the first full year at higher VAT, is likely to come in as low as £950 million better than the forecast £1.025 billion.
This has led to us having the most expensive system in the world. Apples and pears again. We have a different system to most of our European friends. The legal aid bill is likely to be higher in an adversarial system. The National Audit Office prepared a briefing report for the Justice Committee in February 2012 called ‘Comparing International Justice Systems’ which compared the cost of the criminal justice systems of countries around the world. This is the criminal justice system as a whole not just legal aid and would appear to be a much fairer comparison especially for a Ministry in charge of the whole system. The average national spend was 0.33%. The spend for England and Wales was 0.33%. Average. Right in the middle.
5. “Earlier in this Parliament, the Government took significant steps to reform legal aid, to bring costs under control particularly in relation to civil claims. In the current financial climate, it is now necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases.”
This suggests that criminal legal aid has been immune from cuts in the past or at least the recent past. That is simply not correct. There have been no increases in rates since about 1998 – no-one can quite remember when the last upward change was. Criminal legal aid has suffered austerity measures for 15 years, right the way through the supposed boom times. There is no more to cut.
Many of the cuts come from re-structuring and where relevant the base rates remain the same as they were in 1998. Inflation, however, has not remained at zero and £100 in 1998 would be worth £153 today if adjusted for inflation. As an example of what that means to legal aid rates, the London advice and assistance rate (the rate used in appeals and reviews work) for preparation remains at £49.70. Inflation adjusted from 1998 that figure would be £76.04. The Government proposes to cut this rate by 17.5% to £41 which in 1998 would have been £26.80 per hour. In real terms (inflation adjusted) the proposed cut to this rate is about 66% on where we were in 1998.
The cuts are so numerous it is difficult to remember them all but here are just a few you may remember with some nostalgia:
• payment for more than one telephone advice call,
• routine telephone calls on police station work,
• enhanced rates on indictable only duty police station cases,
• enhanced rates on out of hours duty cases at the police station,
• payment for travel and waiting,
• payment for pre-committal based on what you had actually done, then a fixed fee of £318 (then nothing at all),
• enhanced rates in the Crown Court of 100% or 200% on serious fraud cases,
• not being financially penalised when your client elects Crown Court trail and either pleads or the Crown drop the case,
• not being financially penalised when this happens on a non-elected case by payment of a fixed fee which is roughly half of the trial fee having prepared the case fully for trial.
6. “The principles which underpin these proposals are simple: to ensure that those who can afford to pay do so; to make certain that legal aid is not funding cases which lack merit or which are better dealt with outside court; and to encourage greater efficiency in the criminal justice system to reduce costs.”
They may be simple. That does not make them right or fair. Simple is not always good or possible. The criminal justice system is not a simple process. We are not selling cans of beans or delivering a lorry load of bananas to a supermarket. We are dealing with the lives and liberty of those prosecuted by the State and who are already not on a level playing field against the might of the State. Simple is not enough.
Even Lord Carter said in 2006 that those firms working within the criminal justice system were some of the most efficient around. We have to be as the rates are so poor!
7. “The hardworking public pay for legal aid, and we must deliver a system which commands their confidence and spends their money wisely… This is a comprehensive package of measures to restore the public’s faith in the system”
The system already commands their confidence as evidence by the aforementioned ComRes opinion poll. The public does not need its confidence restored. We are also hardworking taxpayers.
8. “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 impact of these changes will also help remedy the great disparity which had emerged within the legal profession by reducing the payments to that small number of lawyers earning very high fees whilst protecting the majority of barristers who should not lose out as a result of our proposals. Indeed, some of the lowest fee earners will be better off.”
This is just baffling. Financially incentivising lawyers to advise guilty pleas is abhorrent. It appeared recently with the elected cracked trial cases and is set to continue here. It sets the lawyer’s interests against that of the client and must be contrary to the SRA principles against conflicts of interest and the requirement to act with integrity. Given that there may be players in the market who are not firms of solicitors, integrity of the non-qualified worker facing targets to get as many pleas in as possible may become a real issue. It is not one we should even be contemplating. It is simply wrong.
9. “Though in Britain today we face serious challenges, this must not undermine our
determination for reform or our desire to achieve the best value for the taxpayer. These proposals are bold but fair, and I look forward to hearing your views.”
So there we have it “bold but fair”. Others might say insane. The comments setting out the rationale for the paper are as evidence free as it is possible to be. You will be hearing our views Mr Grayling. I hope you will be listening.
Steven Bird
Birds Solicitors
29/5/13
Evidence free policy making?
To borrow the phrase used by Sadiq Khan MP at the demonstration outside Parliament organised by the LCCSA on 22nd May 2013, the Government proposals for transforming criminal legal aid are an example of evidence free policy making. In the foreword to the consultation paper, the Lord Chancellor makes a number of assertions. Are any of them backed up with any evidence at all? This is clearly an important question as they form the basis of why the MOJ considers the introduction of PCT and the other changes in the document to be a “financial necessity”?
1. “Access to justice should not be determined by your ability to pay, and I am clear that legal aid is the hallmark of a fair, open justice system.”
We all agree with this opening comment. The problem is that the proposed system will do the exact opposite. Removal of client choice will lead to a lowering of quality for those who cannot afford to pay for their own lawyers. We may have developed a two tiered legal system as a result of 15 years of continual cuts and re-structuring but under these proposals it will become very much worse as those not able to pay will be allocated to and stuck with companies acting for them who they did not choose and for whom a trial will be a financial inconvenience. Even if you choose to fund a lawyer privately and win, you will not recover any of your costs if you would have been financially eligible for legal aid and will only recover costs at legal aid rates if you were financially ineligible. Justice should not just be for the rich. At the moment it is not, but under PCT it will be.
2. “Unfortunately, over the past decade, the system has lost much of its credibility with the public”.
When pressed by Catherine Baksi in his recent interview with the Law Society Gazette, Mr Grayling admitted that he had no actual evidence of this but had received a lot of letters and emails apparently unrelated to criminal legal aid. On the other hand the Bar Council commissioned a poll by ComRes which found that the public were largely supportive of criminal legal aid as a necessity in a civilised society.
The poll found that 71% of the respondents were concerned that cuts to criminal legal aid could lead to innocent people being convicted of crimes they did not commit if forced to use the cheapest defence lawyer available. It also found that 67% agreed that legal aid was a price worth paying for living in a fair society and 75% felt that the poorest would be hit hardest by the proposed changes. Furthermore 68% agreed that at less than 0.5% of annual government spending, “legal aid is a worthwhile investment in our basic freedoms”. This is hard evidence not unsubstantiated comment based on receiving a few emails.
3. “Taxpayers’ money has been used to pay for frivolous claims, to foot the legal bills of wealthy criminals, and to cover cases which run on and on racking up large fees for a small number of lawyers, far in excess of what senior public servants are paid.”
There are three points here. Criminal legal aid does not deal in frivolous claims. He is referring it seems to actions by prisoners or potential judicial reviews. Lawyers will take a view on certain claims and decide whether they are of sufficient merit to warrant public funding. This does not mean that every case taken on will win. Indeed it should not even be close to that as lawyers should be challenging the treatment of prisoners and seeking to hold public bodies to account, especially this Government who are regularly on the end of the judicial reviews of which they seek to limit the funding. Is there not just a slight conflict of interest here? In many judicial review cases, agreements are reached out of court and the matter is never tried. This does not mean that the claim is frivolous. A letter to the Telegraph by 90 eminent QC’s who engage in judicial review work deals with this point far more eloquently than I would be able to do (http://www.telegraph.co.uk/news/uknews/law-and-order/10085014/Leading-barristers-warn-over-legal-aid-cuts.html).
“Wealthy criminals” obtaining legal aid to fight their cases is a subject which is bound to draw some public attention. Those old enough may remember when legal fees could be paid from restrained funds and often were used to fund a defence thereby not troubling the legal aid budget. I cannot now recall which Government legislated so that restrained funds could not be used and the “wealthy defendant” had to turn to legal aid – they had no choice. A reversal of this restriction would most likely be welcomed by most although I would add the caveat that if acquitted all funds paid out should be reimbursed by the State. However, I cannot find mention of it in the consultation paper.
Cases which rack up large fees for a handful of lawyers way above what senior public servants are paid – it beggars belief that it can be a serious reason fundamentally to change a system to deal with a few large bills from a few defence lawyers working on very large and complex cases. If the Crown chooses to prosecute people and serve a room full of evidence, what are the defence lawyers to do but read it? It is called defending your client. I cannot understand why, if this is a major issue, we need to reduce the fees for defending the vast majority of small cases in both courts where the fees are already so small that further cuts are akin to hacking at the bone rather than trimming away any perceived fat.
I am equally baffled by the reference to the pay of senior public officials as it seems totally irrelevant. If I wanted to buy a pound of apples, would I be complaining because it cost more than a pound of pears? I suspect that these senior public officials, whoever they may be, are likely to be paid a fixed salary possibly in six figures, be able to claim expenses from public funds, be entitled to pensions at public expense and even in some cases live in grace and favour accommodation. There are not too many criminal defence lawyers who have a flat in central London part funded by the public because they occasionally work late and could not possibly be expected to take a taxi the 17 miles home to their house.
4. “Under the previous government, the cost of the system spiralled out of control, and it became one of the most costly in the world.”
In my book “spiralling out of control” in this context can only mean the cost of the system is increasing year on year on year at a great rate. This is something that must be easy for the Government to prove and no doubt they will have looked at the historic figures before embarking on the drafting of the consultation paper and letting the Lord Chancellor make such a bold comment.
Surprisingly there is no single source for these figures but the LCCSA has collated them from various MOJ and LSC documentation. Guess what? The spiral is downwards. The figures for 2001/2 to 2008/9 come from the Parliament website and show an increase from 2001/2 to 2003/4 but then the figure starts to drop and continues to drop and drop and drop. The figures are as follows:-
2001/2 £1.21 billion
2002/3 £1.31. billion
2003/4 £1.37 billion
2004/5 £1.35 billion
2005/6 £1.33 billion
2006/7 £1.26 billion
2007/8 £1.23 billion
2008/9 £1.21 billion
2009/10 £1.2 billion (source LSC press release)
2010/11 £1.14 billion
2011/12 £1.08 billion (PCT consultation document)
2012/13 £1.025 billion – projected figure in LSC business plan 2012/13 but likely to be as low as £950 million when finally published after the close of the consultation.
2013/14 £0.941 billion – projected figure from LAA 2013/14 business plan
What should also be borne in mind is that these figures include VAT so the Treasury gets back 15%, 17.5% or 20% depending on which year you are looking at. This means that when VAT went up to 20% from 17.5 % on 4th January 2011, there would have been an upward pressure on the cost of legal aid. The exact figure is hard to calculate but 2.5% of £1 billion is £25 million. In fact the figure for 2012/13, the first full year at higher VAT, is likely to come in as low as £950 million better than the forecast £1.025 billion.
This has led to us having the most expensive system in the world. Apples and pears again. We have a different system to most of our European friends. The legal aid bill is likely to be higher in an adversarial system. The National Audit Office prepared a briefing report for the Justice Committee in February 2012 called ‘Comparing International Justice Systems’ which compared the cost of the criminal justice systems of countries around the world. This is the criminal justice system as a whole not just legal aid and would appear to be a much fairer comparison especially for a Ministry in charge of the whole system. The average national spend was 0.33%. The spend for England and Wales was 0.33%. Average. Right in the middle.
5. “Earlier in this Parliament, the Government took significant steps to reform legal aid, to bring costs under control particularly in relation to civil claims. In the current financial climate, it is now necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases.”
This suggests that criminal legal aid has been immune from cuts in the past or at least the recent past. That is simply not correct. There have been no increases in rates since about 1998 – no-one can quite remember when the last upward change was. Criminal legal aid has suffered austerity measures for 15 years, right the way through the supposed boom times. There is no more to cut.
Many of the cuts come from re-structuring and where relevant the base rates remain the same as they were in 1998. Inflation, however, has not remained at zero and £100 in 1998 would be worth £153 today if adjusted for inflation. As an example of what that means to legal aid rates, the London advice and assistance rate (the rate used in appeals and reviews work) for preparation remains at £49.70. Inflation adjusted from 1998 that figure would be £76.04. The Government proposes to cut this rate by 17.5% to £41 which in 1998 would have been £26.80 per hour. In real terms (inflation adjusted) the proposed cut to this rate is about 66% on where we were in 1998.
The cuts are so numerous it is difficult to remember them all but here are just a few you may remember with some nostalgia:
• payment for more than one telephone advice call,
• routine telephone calls on police station work,
• enhanced rates on indictable only duty police station cases,
• enhanced rates on out of hours duty cases at the police station,
• payment for travel and waiting,
• payment for pre-committal based on what you had actually done, then a fixed fee of £318 (then nothing at all),
• enhanced rates in the Crown Court of 100% or 200% on serious fraud cases,
• not being financially penalised when your client elects Crown Court trail and either pleads or the Crown drop the case,
• not being financially penalised when this happens on a non-elected case by payment of a fixed fee which is roughly half of the trial fee having prepared the case fully for trial.
6. “The principles which underpin these proposals are simple: to ensure that those who can afford to pay do so; to make certain that legal aid is not funding cases which lack merit or which are better dealt with outside court; and to encourage greater efficiency in the criminal justice system to reduce costs.”
They may be simple. That does not make them right or fair. Simple is not always good or possible. The criminal justice system is not a simple process. We are not selling cans of beans or delivering a lorry load of bananas to a supermarket. We are dealing with the lives and liberty of those prosecuted by the State and who are already not on a level playing field against the might of the State. Simple is not enough.
Even Lord Carter said in 2006 that those firms working within the criminal justice system were some of the most efficient around. We have to be as the rates are so poor!
7. “The hardworking public pay for legal aid, and we must deliver a system which commands their confidence and spends their money wisely… This is a comprehensive package of measures to restore the public’s faith in the system”
The system already commands their confidence as evidence by the aforementioned ComRes opinion poll. The public does not need its confidence restored. We are also hardworking taxpayers.
8. “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 impact of these changes will also help remedy the great disparity which had emerged within the legal profession by reducing the payments to that small number of lawyers earning very high fees whilst protecting the majority of barristers who should not lose out as a result of our proposals. Indeed, some of the lowest fee earners will be better off.”
This is just baffling. Financially incentivising lawyers to advise guilty pleas is abhorrent. It appeared recently with the elected cracked trial cases and is set to continue here. It sets the lawyer’s interests against that of the client and must be contrary to the SRA principles against conflicts of interest and the requirement to act with integrity. Given that there may be players in the market who are not firms of solicitors, integrity of the non-qualified worker facing targets to get as many pleas in as possible may become a real issue. It is not one we should even be contemplating. It is simply wrong.
9. “Though in Britain today we face serious challenges, this must not undermine our
determination for reform or our desire to achieve the best value for the taxpayer. These proposals are bold but fair, and I look forward to hearing your views.”
So there we have it “bold but fair”. Others might say insane. The comments setting out the rationale for the paper are as evidence free as it is possible to be. You will be hearing our views Mr Grayling. I hope you will be listening.
Steven Bird
Birds Solicitors
29/5/13
