Comment on the Ministerial Foreword
The last consultation received 16000 responses. This is a huge amount for any consultation process. It is unbelievable that between 4th June 2013 when the last consultation closed and 5th September when this one opened, the Ministry of Justice could have read and digested the content and considered properly the numerous alternative proposals set out in those 16000 responses. The MOJ and Mr Grayling seem to be in a terrible hurry to inflict as much damage as possible on the criminal justice system when what is required is a measured consideration of the system as a whole with a view to making changes that will be adequately thought out and will make a difference to the criminal justice system and the cost of it to the taxpayer.
It is notable that the MOJ is putting together a panel of criminal lawyers to look at the legal process to identify scope for improvement and to draw up proposals for reform. This is the first sensible Government proposal to come out of the entire consultation process to date but it beggars belief that the Government wants to rush ahead with these cuts and systemic changes to legal aid without having undertaken the above review beforehand. It is obvious to those working within the system (which unfortunately does not seem to include anyone who has had a hand in drafting this consultation document or the last one) that if these changes come into force, the supplier base of criminal legal aid firms will disappear very quickly and once gone, they cannot be replaced.
It is disappointing to see the Minister using the same tired rhetoric in his foreword without really considering whether what he is saying is actually true. He says that he has to ensure that that the legal aid system “commands public confidence, and is put on a sustainable footing, for those who need it, those who provide it, and those who ultimately pay for it – the taxpayer”. During the last consultation period Mr Grayling was interviewed by Catherine Baksi for the Law Society Gazette and he admitted that he had no actual evidence of the system losing public confidence 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 then 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.
No evidence has been produced by the Ministry since those comments and since the ComRes poll to contradict the findings of that poll and to demonstrate that the legal aid system does anything other than command public confidence.
This very important as the Minister is relying on this notion that the system must “command public confidence” to make enormous systematic changes to the delivery of legal aid services in criminal defence work and to reduce the amount paid to the suppliers of those services. It is part of his very justification for the need to change and yet it is baseless. It is not founded on any evidence. Criminal lawyers (and indeed all lawyers) work on evidence. The Minister is not a lawyer but that does not excuse him acting on nothing more than sound bite or gut feeling, especially when evidence is available but points in the opposite direction.
What about putting legal aid on a “sustainable footing”, what does this actually mean? Is it any more than meaningless Government speak more at home on Yes Minister or The Thick of It than in a serious consultation paper on a very serious and important subject? The comment suggests that legal aid is currently unsustainable. In what way is it unsustainable? He mentions it having to be sustainable for three parties: those who need it (our clients), those who provide it (the lawyers) and those who pay for it (the tax payer which includes the lawyers who provide the service).
The current system provides an excellent service to those who need it. Solicitors are currently available 24 hours a day, 7 days a week, 52 weeks of the year to anyone arrested at the police station. Subject to means and the merits of the case, individuals can currently receive advice, assistance and representation of the highest quality under a system that has operated increasingly efficiently since its inception. There is absolutely nothing about the current system that suggests that it may not be sustainable for those who need it.
Under the current system those providing the service have adapted to numerous and constant cuts to rates and changes in payment structures over the last 15 years. No fee increases have been given in that time, not even to keep up with inflation. However, there have been cut after cut after cut. The country pre-2008 was apparently in an era of prosperity. The legal aid supplier base did not share in that prosperity as their rates were frozen and then reduced both by rate cuts and structure changes. In the last consultation the minister had the temerity to suggest that the legal aid sector cannot be immune from cuts. The sector has been immune only from increases to rates that every other section of business has experienced between 1998 and 2008. We know about cuts – we have had them non stop for 15 years but we have reached the point where no more can or should betaken from the budget.
Criminal legal aid has suffered austerity measures for 15 years. 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:
• 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 trial 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.
If the current system is not sustainable for those who provide the service, it is because of the previous cuts in rates and the fact that the payments received are too low already. This is not improved by making further savage cuts as proposed in this document. It cannot make a system more sustainable for the supplier base to reduce the rates of pay below levels at which it is financially viable to provide the service. That is what these proposals achieve. In short, they are simply not financially viable if any acceptable quality of representation and advice is to be preserved.
This was recognised by Des Hudson, the Chief Executive of the Law Society, on 1st October 2013 when he addressed a very angry group of criminal lawyers at a meeting arranged by the LCCSA. He stated quite clearly that in the view of the Law Society, solicitors could not provide an acceptable level of service to their clients at the rates set out in the consultation document. On that at least, we agree with him.
Is the current system unsustainable for the tax payer? In short the answer is no. Despite hugely misleading comments made publicly by the Minister about the costs of criminal legal aid “spiralling out of control” (see his foreword to the last consultation), the costs of criminal legal aid have reduced each year since 2003/4. Given the lack of increase in rates, this is unsurprising. What is surprising is that the Minister feels the need to interfere in the system by prosping such huge cuts when his desired savings will be made with no further intervention due to the current state of the market and the continued downward trend on costs.
Surprisingly there is no single source for the legal aid spend figures but the LCCSA collated them from various MOJ and LSC documentation for the last consultation. The concrete evidence shows that 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 £975 million – the projected figure in LSC business plan 2012/13 was £1.025 billion so this shows a saving on expected spend of £50 million.
2013/14 £0.941 billion – projected figure from LAA 2013/14 business plan but likely to be lower
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, came at £971 million, much better than the forecast £1.025 billion.
The cost of the system is well under control and is falling more rapidly than the Government had forecast. How then is the cost of the system unsustainable for the tax payer? Left as it is, the reduction of £220 million on the 2011/12 figures (the Government’s stated objective for these proposals) will be saved and possibly exceeded by 2018/19 (the Government’s stated time scale for these “savings”).
When one considers the figures, it is inevitable that one starts to consider whether the changes and savage cuts proposed are less about austerity and more about ideology: the belief that all those arrested and charged are guilty and do not deserve proper representation (unless perhaps they can afford to pay for it themselves – such as those MPs who have found themselves in difficulty over the last few years). The ideology that the Government wants to interfere with the provision of effective defence representation and manipulate the advice that may be given to those charged with criminal offences to increase the rate of guilty pleas. It is unlikely that anyone in Government will admit this to be the case, so abhorrent is it to the rule of law. However, it pervades the consultation document throughout like a lingering sulphurous odour.
One should perhaps also consider the words of Lord McNally from earlier this year as they give us a clue that our comments above are based on fact and not paranoia:
“Our proposal to harmonising basic legal aid fees (for early guilty pleas, late guilty pleas and short trials) will help to encourage the prompt resolution of cases in a way that is consistent with our overall CJS objectives. Harmonisation is intended to ensure that the fee scheme does not inadvertently lead to delay or potentially discourage the defence team from giving consideration to plea with the defendant early in proceedings, because legal aid fees no longer rise the later a case is resolved.”
In a nutshell, Government policy is to seek to bribe solicitors and barristers to advise their clients to plead guilty as soon as possible contrary to their professional obligations to their clients to provide independent advice based on the evidence in the case and on the law. This stated objective of Government is insulting to the profession and says much about the moral bankruptcy at the heart of this Ministry and this consultation document. It is a policy of which the Lord Chancellor should be thoroughly ashamed and from which one would expect he would wish to distance himself very quickly.