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Legal Aid – A Pyrrhic Victory

About The Author

Former Author (Assistant Editor)

Author is a King's College London Law graduate, currently working as a corporate paralegal for a firm based in South West England. Author is due to begin his BPTC at the University of Law in September 2015, having attained a scholarship from Middle Temple.

The opposition to the government’s legal aid reforms is still as vehement as it was when I wrote my last article in March. There have been further days of action by solicitors and probation officers and until very recently the continuation of the ‘no returns’ policy was grinding criminal courts up and down the country to a halt. But on Wednesday evening last week something changed, a very controversial deal was struck between the Criminal Bar Association (CBA) and the Ministry of Justice. Since its announcement there has been very real concern that all of the progress made in the campaign to protect legal aid spending may unravel. Thus far, the campaign has been remarkable for the creation of unity between two sections of the legal profession but this is now under threat.

It was officially announced by Nigel Lithman QC on Thursday morning, that the Criminal Bar Association, after consultation with heads of chambers and circuit leaders had agreed a deal with the Ministry of Justice that the policy of ‘no returns’ by barristers would be stopped in exchange for a suspension of any further cuts to fees for the junior bar before 2015. The agreement also provided that the VHCC (Very High Costs Cases) payment scheme would be reviewed. Crucially, however, the deal made no mention of the reductions that had already come into force for solicitors or the 30% cut to VHCC fees that had been introduced in December.

This deal encompassed much of what had been demanded by the CBA, the pledge of ‘not a penny more’ had arguably worked and the Ministry of Justice had recognised that this problem was not going to simply go away. However, as the deal was announced it was clear that although this deal may initially seem to be a victory, its consequences could prove to be disastrous for the criminal bar and the campaign to reverse the cuts that had already come into effect.

As I and many others have been insistent upon from the time of the first consultation in November 2012, these reforms are a fundamental threat to access to justice. Until the deal was struck, the argument was resolutely put forward by barristers and solicitors and even some journalists that the opposition to the cuts was about more than fees; it was about access to justice and the need to maintain the high quality of legal representation regardless of financial means. The deal has threatened to derail this image as it turns the debate back into one about self-interest and the divide between the legal professions.

The Deal

The issue that many have raised with the agreement reached is that there was no proper consultation with the members of the junior bar that Nigel Lithman QC said that he set out to protect. Major concerns have also been raised that this deal failed to take into account the need for unity amongst the professions, and taking a deal just a few days before solicitors were due to go on their first official strike re-created the divide between the two.

Some solicitors were so incensed by the announcement that they declared that they would no longer brief any members of the criminal bar, and instead seek to employ HCA (Higher Court Advocates) and in-house counsel because of a lack of trust. Although this may seem like a rather over-exaggerated response to the announcement, there is much economic sense in this for firms looking to survive in a legal climate that is likely to have much less money to go around.

A day later it was announced by the CBA that they would hold an official ballot of their members to either affirm or ditch the deal that had been agreed upon. The results of this ballot have not yet been announced, but they will certainly mark a defining moment in this campaign to reverse the cuts. If the deal is affirmed then it will likely reopen the divide between the bar and solicitors and may lead to the accelerated decline of the criminal bar as advocacy is moved in-house.

Strike Action

Earlier this week, solicitors and NAPO (the National Association of Probation Officers) held a two-day walkout from Magistrates’ Courts’ proceedings, which resulted in hundreds of ineffective trials. The fact that Chris Grayling’s birthday fell on the second day of the strike was of no coincidence and hundreds turned out for a rally and march in Westminster. The grievances of criminal solicitors have been outlined in my previous article, but the overall objection is that the cuts will make almost every current legal aid firm unsustainable and the amount of legal aid contracts is to be reduced from 1600 to 400. This will mean the end for high street firms of solicitors who will be forced to either merge or cease to exist, with only larger firms being financially viable if they significantly reduce costs. The drive for cutting costs will inevitably affect quality, as the larger firms will offer reduced salaries disincentivising the most able from applying.

The strike action by solicitors was not as well supported as the days of action by barristers earlier this year as many firms, most notably the BFG (Big Firms Group), have come to accept that resistance to the cuts will yield no results and the opposition are merely delaying the inevitable. This is a position supported by the Law Society, the official representative body of solicitors who have taken a very reserved stance on the matter. Instead the CLSA (Criminal Law Solicitors’ Association) and LCCSA (the London Criminal Courts Solicitors’ Association) have taken the initiative on the opposition to legal aid reforms and yesterday gave details of a new action for all members. The new protocol is that from 7th April to 19th May, criminal firms will no longer apply for legal aid funding for Crown Court work. This plan would mean that, Crown Courts across the UK would grind to a halt very quickly as there would be a drastic reduction in the number of cases brought, so long as there is sufficient take-up of the protocol. This draws heavily on the perceived success of the ‘no returns’ policy in making the government reconsider the cuts which were said to be ‘set in stone’ just two weeks before the CBA deal. Thus far there has been mixed levels of participation from criminal law firms, and this next action may show how united the profession is internally. If the solicitors want the criminal bar to unite with them, they must first be able to show that they act in unison internally.

In addition to the reforms to legal aid, the government is planning to privatise the probation service and allow providers such as A4E (formerly G4S) and Serco to bid for contracts. It is remarkable that these companies are still considered for government contracts, let alone ones for the Ministry of Justice, as they have shown to consistently fail to meet targets and provide a much lower level of service than the previous system gave. The overcharging scandal of the tagging contract is probably the most high-profile example of the failures of privatisation, but there are many others including prison transport and the interpreter service, which were outsourced to Capita.

Where next?

The answer to this question depends largely on the result of the ballot of CBA members. If a majority confirm the deal, then the future of the criminal bar is placed in the hands of the government and the recommendations from the Leveson report on the efficiency of our justice system which is due in 2015.

Serious doubt can be cast on the reliability of this proposal, especially in light of the failure of the government thus far to engage with reports and risk assessments. Indeed, the Otterburn report highlighted that the current government cuts would in effect make every single criminal legal aid firm unsustainable after the cuts were implemented, as well as seriously affecting the future of the criminal bar but this was largely ignored and seemed not to affect government policy on the matter. If one thing is certain, it is that there is a lot of uncertainty. For criminal practitioners it once again feels like a ‘make or break’ moment and although the CBA may have given the initiative back to the government over the last week, it will be extremely interesting to see what unfolds in the coming weeks.

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Tagged: Criminal Law, Legal Aid

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