Date: 21/05/2013
7th May 2013
Mr Chris Grayling MP
Houses of Parliament
London SW1
By e-mail
Dear Mr Grayling,
Criminal Legal Aid – consultation document
I am one of your constituents and I run a specialist firm of criminal defence solicitors based in south west London. I qualified as a solicitor after university, Law School and articles in 1990 and have only undertaken criminal defence work since that time. I started my own practice in October 2000 at considerable personal financial risk. At that time my firm consisted of 7 solicitors, one paralegal and two support staff. Now the company is responsible for the livelihood of 22 solicitors, two paralegals and four support staff.
Since the firm opened its doors in 2000 there has been no increase in legal aid fees for crime. Throughout the years of growth and prosperity in the economy under the previous Government until 2008, criminal legal aid practitioners did not benefit from increased rates. Quite the contrary, as we suffered cuts in rates even during those boom years. In fact I cannot recall the last increase in rates which was sometime in the last century. For the last 14 plus years we have suffered reducing rates and changes in payment structures that have had an adverse impact on our turnover. We have seen, in the time that my firm has been operating, the introduction of the criminal Contract, fixed fees in the police station (which meant the removal of telephone advice fees, enhanced rates for out of hours work and the standby payment for being on call at unsocial hours), the removal of the committal fee in the Magistrates Court and fixed fees in Crown Court work (and therefore the loss of enhanced rates on complex cases).
This is by no means an exhaustive list of the cuts to criminal legal aid in recent years. We have lived though the Serious Fraud Panel, the absolute farce of the VHCC Panel which was duly jettisoned a few years after being put in place at great cost of time to those who entered the bidding process. I remember the stress and the enormous number of hours spent putting the bid together all too well.
We have also endured the threatened introduction of BVT post-Carter and the last Government’s attempts to introduce PCT which was, you will recall, opposed by both the Conservatives and the Liberal Democrats in opposition. Lord Carter at least recognised the fact that client choice ensured a level of quality and that competition based solely on price was inappropriate for this market. In fact your colleague Dominic Grieve said at the time of the more moderate Carter proposals: ‘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.’
I appreciate that much of this pre-dates your time in Government and at the MOJ but I am sure that as an ambitious politician you will have read your brief and be on top of the historic background.
Throughout all of this my firm has not only survived but managed to make a profit whilst providing a top rate service to members of the public who could not afford to pay for their own representation (85% of our turnover is from legal aid). The quality of that work has been recognised by others in the profession via top rankings in all of the legal directories and by our clients in their recommendations to others and on regular occasion repeat business.
As a small business enterprise we had understood that the current Government was supportive of our type of business structure. We have proved adaptable to the onslaught of changes introduced and the continuous downward curve of legal aid rates under successive Governments. We will not apologise for having made a profit from the service that we provide just as you should not need to apologise for receiving a salary for fulfilling your role as an MP. The fact that we have done so is largely due to the nature of the work that we have undertaken based entirely on the firm’s reputation.
It is extremely disheartening to be faced with yet another ill thought out Government proposal, this time from your department, seeking to introduce PCT and further sweeping cuts in funding in other areas (e.g. Crown Court advocacy, appellate advice and assistance and VHCC). We have been here before more than once but never has a Government proposal been as badly constructed and as potentially disastrous as this one.
You will be well aware of the strength of feeling against these proposals from all quarters: the Bar, the judiciary, solicitors, academics, other commentators and even members of the public who rarely consider cuts to criminal legal aid to be a cause for concern. With all of this well expressed discontent and when even the Sunday Express is doubting the sanity of the proposals, one would hope that Government might begin to wonder if a mistake of colossal proportions might be looming on the horizon.
We all appreciate that we currently live in difficult financial times. However, you will recall that we as criminal defence lawyers have never even had the benefit of the good times enjoyed by others in the economy. The current system is already creaking as rates are as low as they have ever been and in some cases work has to be undertaken by firms at a loss. In particular the loss of any payment for pre-committal work but with no increase in the litigator fee to compensate and the payment structure for elected cases which crack before trial (whether by plea or the Crown dropping the case) give us grave cause for concern as things currently stand.
Although I have yet to find a reasoned explanation as to why the Government has settled on a figure of £220 million to save by 2018, I understand that this is the figure you wish to save from the amount paid in the financial year 2011/12. It is surprising that you have reduced the normal consultation period to 8 weeks on a project as potentially devastating as this and more so when one realises that the Legal Aid Agency figures for the financial year 2012/13 will not be published before the end of the consultation period. The changes introduced in 2010 onwards (two of which are mentioned above) had not filtered through to the 2011/12 spend and together with a general decrease in volume of work, savings will already have been made. Indeed, published a week after the consultation paper, the LAA Business Plan accepts the above analysis and estimates the spend for 2013/14 at £168 million less than the 2011/12 figures. On the recent changes alone, you have nearly made your savings. Giving the system time to settle is inevitably going to manage the further £52 million reduction required. Change for change’s sake is never a good idea.
So what is the real reason for such a dramatic change to the system of criminal defence funding? It cannot be solely about the money. Do you really want to see the large corporations running criminal defence services with only an eye to profit and not to the interests of their clients? What of the Government’s supposed support for small and medium enterprises? You will destroy over 1000 of them with these changes.
I have heard that Government actually believes that the proposed structure of the tendered contract will be an opportunity for small and medium enterprises to join together in consortia or other alternative business structures to bid for contracts. This much is stated in the document itself. If this is actually Government thinking, it is misconceived and either deliberately obtuse or incredibly naive. The whole structure of the proposals is such that no firm, big or small, could possibly expect to survive financially while still providing any reasonable quality of service to its clients. Any firm with integrity would not bid for such a contract. In addition, in seeking to join together firms would have to wrestle with the problem of investment in such things as IT without any of the benefits of economies of scale as office premises will still be spread across a wide geographic area to service such a contract. We cannot just walk away from current leases on business premises with impunity. My firm signed a 12 year lease last year albeit with break clauses at intervals but these are all business costs which the Government conveniently ignores. Joining together to bid for such a contract is akin to joining a business suicide pact.
These are not reforms as reform suggests an improvement in what is already in place. The proposals are dangerous to the administration of justice in the UK, reckless and foolhardy. I would not imagine that any minister would wish to have the destruction of the criminal justice system as their legacy from their time at the Ministry of Justice.
As Lord Carter recognised, removing client choice is absurd. It is this that guarantees quality of service. Even the consultation document itself recognises this to be the case. The changes are, post the initial bid, in fact, anti-competitive as they will create a sterile business environment in which no firm can gain or lose market share as a result of the quality of the work they undertake. No firm can enter the market in competition to those already operating in it and, come the next bidding round, if any businesses have survived on the rates that they will have been paid, the competition for contracts will have disappeared altogether.
The removal of client choice has its own cost to the legal aid fund. I do not believe that the proposals have been properly costed so that you can be sure that the proposed changes will not cost the taxpayer more than they are likely to save. Just two examples where the proposed system build sin extra cost: We often represent the same individual on repeat cases. This type of person will not be one for whom the public will often have much sympathy but our knowledge of them saves a huge amount of court time and public money. We know their issues. They trust us to advise them properly. If we advise an early guilty plea they will accept it.
My firm has a specialism in protest work and animal rights activism in particular. In recent years we have acted in three VHCC cases involving animal rights activists. In one we represented 7 out of 10 defendants. Of these seven, two pleaded guilty at an early stage on our advice and the case against two others was dismissed following a contested dismissal hearing. In the second trial we represented 4 out of 7 defendants.
These cases were not in London. The arrests on the two cases were in places as diverse as Merthyr Tydfil, Folkestone, Alton and Charing Cross. At arrest we represented 25 out of 34 suspects. Not all were charged. Under the proposed system each of these suspects would have had a different solicitor. At the two trials there would have been 17 solicitors on a VHCC contract. In fact in trial one there were only four firms involved and in trial two there were four firms (two of us had been involved in trial one). The saving to the public purse from our expertise in this specialist area and our ability to represent multiple defendants would have run to hundreds of thousands of pounds. Your new system will in some cases lead to a significant increase in costs.
Paying Solicitors the same rate for guilty pleas as trials in both the magistrates and crown court and not differentiating payments to the nature of the case in the crown court can only encourage firms not to devote time to the complicated cases or the vulnerable (and time consuming) clients. The financial interests of the contracted company is put into constant and direct conflict with the interests of the client in defending his case and the interest of justice in seeking to acquit the innocent and convict only the guilty. In my view, this puts firms in danger of breaching a number of the principles by which the profession is regulated.
My firm will be one of the majority of existing firms in the country which will not bid for a contract under these proposals or consider joining other firms to make such a bid. This will mean redundancies and hardship for a number of hard-working, tax-paying individuals across the country. It will also destroy the professional reputations of numerous solicitors and, in my case, one that I have built up during the last 25 years of my professional life. It is just part of the cost of these utterly unworkable proposals.
There are so many things wrong with the consultation paper and so many dangers for the country lurking in the background if it is implemented that my firm’s response will be very lengthy indeed. The one benefit to your proposals is that they seem to have managed to unite the Bar and the solicitors’ profession in argument against it. This is no mean feat and for that at least I am grateful to you.
I have grown cynical to the response of Government to such consultations. They are in every case consultations in name only. I hope that this will be different. However, the recent comments of the LAA in relation to administrative cuts if not enough firms bid for contracts would hint at other already decided plans. If you feel that criminal legal aid firms can withstand cuts of up to 20% as suggested, I would ask you to read the 2011 Otterburn report (http://www.otterburn.co.uk/legalaidreport.pdf). Our profit margins are not that high and cuts of this magnitude will be as financially destructive as PCT.
I would urge you to listen, genuinely listen, to the concerns of those voices in opposition to your proposals. Our concern is not one of self interest but is born of genuine concern for the criminal justice system, a deep rooted desire to see it preserved so that it remains the envy of many other countries around the world.
Our concern is for those individuals who may find themselves on the wrong end of the system in the future and who will be allocated a lawyer based on the cheapest tendered bid and with a positive disincentive to put any time or effort into their cases. Justice has to be preserved and cannot be sold to the lowest bidder or restricted to the wealthy.
I would be grateful if you were to agree to see me for a face to face meeting to explain why these proposals are considered necessary and to answer these fundamental concerns. I would also urge you to see those representative bodies currently seeking meetings with you to discuss these proposals and to listen to what they have to say.
Yours faithfully,
Steven Bird
Birds Solicitors
61 Wandsworth High Street
London SW18 2 PT
s.bird@birds.eu.com
7th May 2013
Mr Chris Grayling MP
Houses of Parliament
London SW1
By e-mail
Dear Mr Grayling,
Criminal Legal Aid – consultation document
I am one of your constituents and I run a specialist firm of criminal defence solicitors based in south west London. I qualified as a solicitor after university, Law School and articles in 1990 and have only undertaken criminal defence work since that time. I started my own practice in October 2000 at considerable personal financial risk. At that time my firm consisted of 7 solicitors, one paralegal and two support staff. Now the company is responsible for the livelihood of 22 solicitors, two paralegals and four support staff.
Since the firm opened its doors in 2000 there has been no increase in legal aid fees for crime. Throughout the years of growth and prosperity in the economy under the previous Government until 2008, criminal legal aid practitioners did not benefit from increased rates. Quite the contrary, as we suffered cuts in rates even during those boom years. In fact I cannot recall the last increase in rates which was sometime in the last century. For the last 14 plus years we have suffered reducing rates and changes in payment structures that have had an adverse impact on our turnover. We have seen, in the time that my firm has been operating, the introduction of the criminal Contract, fixed fees in the police station (which meant the removal of telephone advice fees, enhanced rates for out of hours work and the standby payment for being on call at unsocial hours), the removal of the committal fee in the Magistrates Court and fixed fees in Crown Court work (and therefore the loss of enhanced rates on complex cases).
This is by no means an exhaustive list of the cuts to criminal legal aid in recent years. We have lived though the Serious Fraud Panel, the absolute farce of the VHCC Panel which was duly jettisoned a few years after being put in place at great cost of time to those who entered the bidding process. I remember the stress and the enormous number of hours spent putting the bid together all too well.
We have also endured the threatened introduction of BVT post-Carter and the last Government’s attempts to introduce PCT which was, you will recall, opposed by both the Conservatives and the Liberal Democrats in opposition. Lord Carter at least recognised the fact that client choice ensured a level of quality and that competition based solely on price was inappropriate for this market. In fact your colleague Dominic Grieve said at the time of the more moderate Carter proposals: ‘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.’
I appreciate that much of this pre-dates your time in Government and at the MOJ but I am sure that as an ambitious politician you will have read your brief and be on top of the historic background.
Throughout all of this my firm has not only survived but managed to make a profit whilst providing a top rate service to members of the public who could not afford to pay for their own representation (85% of our turnover is from legal aid). The quality of that work has been recognised by others in the profession via top rankings in all of the legal directories and by our clients in their recommendations to others and on regular occasion repeat business.
As a small business enterprise we had understood that the current Government was supportive of our type of business structure. We have proved adaptable to the onslaught of changes introduced and the continuous downward curve of legal aid rates under successive Governments. We will not apologise for having made a profit from the service that we provide just as you should not need to apologise for receiving a salary for fulfilling your role as an MP. The fact that we have done so is largely due to the nature of the work that we have undertaken based entirely on the firm’s reputation.
It is extremely disheartening to be faced with yet another ill thought out Government proposal, this time from your department, seeking to introduce PCT and further sweeping cuts in funding in other areas (e.g. Crown Court advocacy, appellate advice and assistance and VHCC). We have been here before more than once but never has a Government proposal been as badly constructed and as potentially disastrous as this one.
You will be well aware of the strength of feeling against these proposals from all quarters: the Bar, the judiciary, solicitors, academics, other commentators and even members of the public who rarely consider cuts to criminal legal aid to be a cause for concern. With all of this well expressed discontent and when even the Sunday Express is doubting the sanity of the proposals, one would hope that Government might begin to wonder if a mistake of colossal proportions might be looming on the horizon.
We all appreciate that we currently live in difficult financial times. However, you will recall that we as criminal defence lawyers have never even had the benefit of the good times enjoyed by others in the economy. The current system is already creaking as rates are as low as they have ever been and in some cases work has to be undertaken by firms at a loss. In particular the loss of any payment for pre-committal work but with no increase in the litigator fee to compensate and the payment structure for elected cases which crack before trial (whether by plea or the Crown dropping the case) give us grave cause for concern as things currently stand.
Although I have yet to find a reasoned explanation as to why the Government has settled on a figure of £220 million to save by 2018, I understand that this is the figure you wish to save from the amount paid in the financial year 2011/12. It is surprising that you have reduced the normal consultation period to 8 weeks on a project as potentially devastating as this and more so when one realises that the Legal Aid Agency figures for the financial year 2012/13 will not be published before the end of the consultation period. The changes introduced in 2010 onwards (two of which are mentioned above) had not filtered through to the 2011/12 spend and together with a general decrease in volume of work, savings will already have been made. Indeed, published a week after the consultation paper, the LAA Business Plan accepts the above analysis and estimates the spend for 2013/14 at £168 million less than the 2011/12 figures. On the recent changes alone, you have nearly made your savings. Giving the system time to settle is inevitably going to manage the further £52 million reduction required. Change for change’s sake is never a good idea.
So what is the real reason for such a dramatic change to the system of criminal defence funding? It cannot be solely about the money. Do you really want to see the large corporations running criminal defence services with only an eye to profit and not to the interests of their clients? What of the Government’s supposed support for small and medium enterprises? You will destroy over 1000 of them with these changes.
I have heard that Government actually believes that the proposed structure of the tendered contract will be an opportunity for small and medium enterprises to join together in consortia or other alternative business structures to bid for contracts. This much is stated in the document itself. If this is actually Government thinking, it is misconceived and either deliberately obtuse or incredibly naive. The whole structure of the proposals is such that no firm, big or small, could possibly expect to survive financially while still providing any reasonable quality of service to its clients. Any firm with integrity would not bid for such a contract. In addition, in seeking to join together firms would have to wrestle with the problem of investment in such things as IT without any of the benefits of economies of scale as office premises will still be spread across a wide geographic area to service such a contract. We cannot just walk away from current leases on business premises with impunity. My firm signed a 12 year lease last year albeit with break clauses at intervals but these are all business costs which the Government conveniently ignores. Joining together to bid for such a contract is akin to joining a business suicide pact.
These are not reforms as reform suggests an improvement in what is already in place. The proposals are dangerous to the administration of justice in the UK, reckless and foolhardy. I would not imagine that any minister would wish to have the destruction of the criminal justice system as their legacy from their time at the Ministry of Justice.
As Lord Carter recognised, removing client choice is absurd. It is this that guarantees quality of service. Even the consultation document itself recognises this to be the case. The changes are, post the initial bid, in fact, anti-competitive as they will create a sterile business environment in which no firm can gain or lose market share as a result of the quality of the work they undertake. No firm can enter the market in competition to those already operating in it and, come the next bidding round, if any businesses have survived on the rates that they will have been paid, the competition for contracts will have disappeared altogether.
The removal of client choice has its own cost to the legal aid fund. I do not believe that the proposals have been properly costed so that you can be sure that the proposed changes will not cost the taxpayer more than they are likely to save. Just two examples where the proposed system build sin extra cost: We often represent the same individual on repeat cases. This type of person will not be one for whom the public will often have much sympathy but our knowledge of them saves a huge amount of court time and public money. We know their issues. They trust us to advise them properly. If we advise an early guilty plea they will accept it.
My firm has a specialism in protest work and animal rights activism in particular. In recent years we have acted in three VHCC cases involving animal rights activists. In one we represented 7 out of 10 defendants. Of these seven, two pleaded guilty at an early stage on our advice and the case against two others was dismissed following a contested dismissal hearing. In the second trial we represented 4 out of 7 defendants.
These cases were not in London. The arrests on the two cases were in places as diverse as Merthyr Tydfil, Folkestone, Alton and Charing Cross. At arrest we represented 25 out of 34 suspects. Not all were charged. Under the proposed system each of these suspects would have had a different solicitor. At the two trials there would have been 17 solicitors on a VHCC contract. In fact in trial one there were only four firms involved and in trial two there were four firms (two of us had been involved in trial one). The saving to the public purse from our expertise in this specialist area and our ability to represent multiple defendants would have run to hundreds of thousands of pounds. Your new system will in some cases lead to a significant increase in costs.
Paying Solicitors the same rate for guilty pleas as trials in both the magistrates and crown court and not differentiating payments to the nature of the case in the crown court can only encourage firms not to devote time to the complicated cases or the vulnerable (and time consuming) clients. The financial interests of the contracted company is put into constant and direct conflict with the interests of the client in defending his case and the interest of justice in seeking to acquit the innocent and convict only the guilty. In my view, this puts firms in danger of breaching a number of the principles by which the profession is regulated.
My firm will be one of the majority of existing firms in the country which will not bid for a contract under these proposals or consider joining other firms to make such a bid. This will mean redundancies and hardship for a number of hard-working, tax-paying individuals across the country. It will also destroy the professional reputations of numerous solicitors and, in my case, one that I have built up during the last 25 years of my professional life. It is just part of the cost of these utterly unworkable proposals.
There are so many things wrong with the consultation paper and so many dangers for the country lurking in the background if it is implemented that my firm’s response will be very lengthy indeed. The one benefit to your proposals is that they seem to have managed to unite the Bar and the solicitors’ profession in argument against it. This is no mean feat and for that at least I am grateful to you.
I have grown cynical to the response of Government to such consultations. They are in every case consultations in name only. I hope that this will be different. However, the recent comments of the LAA in relation to administrative cuts if not enough firms bid for contracts would hint at other already decided plans. If you feel that criminal legal aid firms can withstand cuts of up to 20% as suggested, I would ask you to read the 2011 Otterburn report (http://www.otterburn.co.uk/legalaidreport.pdf). Our profit margins are not that high and cuts of this magnitude will be as financially destructive as PCT.
I would urge you to listen, genuinely listen, to the concerns of those voices in opposition to your proposals. Our concern is not one of self interest but is born of genuine concern for the criminal justice system, a deep rooted desire to see it preserved so that it remains the envy of many other countries around the world.
Our concern is for those individuals who may find themselves on the wrong end of the system in the future and who will be allocated a lawyer based on the cheapest tendered bid and with a positive disincentive to put any time or effort into their cases. Justice has to be preserved and cannot be sold to the lowest bidder or restricted to the wealthy.
I would be grateful if you were to agree to see me for a face to face meeting to explain why these proposals are considered necessary and to answer these fundamental concerns. I would also urge you to see those representative bodies currently seeking meetings with you to discuss these proposals and to listen to what they have to say.
Yours faithfully,
Steven Bird
Birds Solicitors
61 Wandsworth High Street
London SW18 2 PT
s.bird@birds.eu.com
