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Legal Aid: The Day of Action – What Next?

Photograph: Peter Macdiarmid/Getty Images

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.

For the latest on legal aid, see Legal Aid – A Line in the Sand, published 10th March 2014.

On 6th January, criminal lawyers took a very drastic step and staged a half day protest against the proposed cuts to the legal aid budget. This was the first such action in over 500 years and hundreds of barristers and solicitors stationed themselves outside criminal courts up and down the country; consequently very few hearings were conducted. One judge remarked that he felt ‘lonely’ because of the lack of counsel present. This unfortunate event was felt to be necessary because negotiations between the government and lawyers have been largely fruitless thus far, and this is the clearest signal yet that barristers and solicitors have finally said enough is enough. Ivonna has already discussed the constitutional implications of the legal aid cuts brought in by LASPO in 2012 but the further proposed cuts have proved to be the final straw for the criminal bar and solicitors.

As a brief summary, the Lord Chancellor intends to cut fees for criminal barristers by 30% on average and make wholesale changes to the awarding of duty contracts for solicitors (lawyers who attend police stations and provide legal advice to arrested members of the public). There will also be a tapering of fees to encourage trials to be shorter, which in effect incentivises guilty pleas and will undermine the long-standing presumption of innocence. It is most often in the client’s best interests to contest a prosecution case as the burden of proof is high and altering the incentives for counsel may undermine this vital presumption. There will also be changes to the remuneration for VHCCs (Very High Cost Cases) and a substantial reduction in fees. The costs for these trials are high because of their complexity, usually commercial fraud trials which can last months and require examination of several thousand documents and testimonies. The overall volume of cuts is particularly striking when one takes into consideration that over the coming year public sector workers will receive pay rises of 1% and MPs are set to receive a pay increase of 11% and the total savings projected by the cuts is only £220 million. That may seem like a large amount but put in the context of the total cost of HS2, roughly £42bn at last estimate, they are a drop in the ocean of total government spend.

The Ministry of Justice released figures the day before the action showing that the average legal aid (not necessarily criminal) barrister in 2012/13 received fees of £72,000 per annum. There are two fundamental flaws in these figures as first presented. The first is that the use of an annual average can be misleading, as the payment of legal aid fees is unpredictable, so barristers can receive fees in one tax year that were accrued as much as three years previously leading to a higher figure than would be a true representation. Secondly, as a barrister is self-employed and essentially a one-person business, to get a true ‘take home pay’ figure one has to deduct tax, chambers fees and travel costs, which would leave the average at about £47,000. The Criminal Bar Association, led by Nigel Lithman QC, has gone further to question the presentation of the figures by the Ministry of Justice. He has highlighted that the median fee income is actually less, at £56,000 equating to £37,000 in ‘take home pay. The MoJ also accept that 24% of barristers undertaking publicly funded work receive less than £20,000 a year in fees, which equates to a salary of £14,184 in an employed private sector job. Junior criminal barristers will also have debts of approximately £30,000 due to the high costs of legal training. It should also be noted that the figures provided by the Ministry of Justice are calculated as the situation currently stands and therefore before the proposed cuts are taken into account. It is extremely difficult to see how the Ministry of Justice can maintain that the Criminal bar will be able to sustain any further cuts.

The government first introduced these proposals in early 2013 and are still struggling to come to an agreement with lawyers over the final package. The initial proposals were substantially altered in July with the government making a u-turn over the highly controversial proposal to introduce price competitive tendering into legal aid contracts. This would have ended client choice for those charged with criminal offences and after negotiations with the Law Society and under pressure from over 16,000 consultation responses it was abandoned. A second consultation, Transforming Legal Aid: The Next Steps was launched last year on the revised proposals and there has still not been a formal response by the government to the thousands that replied. In light of this day of action, the question left is what exactly will happen next? Will the government go ahead regardless, make a complete u-turn or possibly attempt a compromise?

Media Reaction

Reports made during the day of the strike or in the immediate aftermath approached the issue in a very measured and neutral fashion, the most notable of which being the Daily Mail. If one ignores the headline, which was added the day after, the article itself gave a platform for Nigel Lithman to present the argument in a very objective manner and also provided a full statement from Sadiq Khan MP, the shadow justice secretary. The Telegraph ran a piece the following day claiming that £1 million had been wasted in Crown Courts by the delay of trials but they cite no authority for the assertion apart from trying to extrapolate from the cost of running a Crown Court trial for a morning. This is a falsehood because many of the courts actually closed rather than remaining open and is very unhelpful to the wider debate on the issue of fees. Despite this unhelpfulness, the Telegraph did allow an editorial piece by a criminal barrister outlining the problems with the proposals and others have followed suit, most recently the Financial Times. It seems as if the long-standing characterisation of barristers as ‘fat cats’ is being steadily but substantially undermined in the reports. The comments from readers on the various articles show that there is some way to go to fully imbue respect for the vital work that they do, but there areencouraging signs or a change in attitude.

Response from Lord Chancellor/Government

Initially it seemed that the government were simply trying to ignore the day of action, and even a week after we still have not had an official statement from the Lord Chancellor on the issue. The only government representative that was available to give a statement to television reporters was the new Minister for Legal Aid, Shailesh Vara. Unfortunately, he was unable to address the issues raised fully, using the oft-repeated and disproved statement that the UK has ‘one of the most expensive legal aid systems in the world’ and also stated incorrect figures on the earnings of legal aid barristers. It is interesting to note that in the written press, the ubiquitous ‘Ministry of Justice spokesperson’ has still not abandoned this mantra and also refers to the need to make cuts ‘as fairly as possible’. Many lawyers have taken hope from the fact that Mr Grayling has not made a press appearance since and highlight that the anticipated Otterburn report, an impact assessment of the proposed changes, has not yet been released. It is widely expected that this report will expose the flaws in the Ministry’s plans and is thus being held back until late January or early February to allow extra time to deal with the concerns raised within.

Where next?

The Ministry of Justice clearly has a responsibility to make cuts in these austere times but there are other more effective and fair ways to do it. Chris wrote an article earlier this week about raising the costs for commercial litigation in order to offset the cost of trials which could go some way to reducing the deficit. However, the most potent argument that is raised frequently by lawyers is the amount of money that is wasted each year by the Ministry of Justice as a result of their outsourcing of interpreting services and prison transport. See #MoJwaste on Twitter for examples from across the UK of the failures of private providers. G4S, Serco and Capita are the three main providers of services to the Ministry of Justice and the recent scandal of overcharging for tagging highlights another area where the Ministry are wasting money. The Crown Prosecution Service have also released statistics on how much was paid out in wasted costs orders from 2003 to 2013 which highlight another area of waste. The figure has jumped from £160,000 in 2004 to £1.2 million last year; this is a very striking increase and one that should not be taken lightly. This highlights the legal system is very inefficient and these figures do not even give a fraction of the total waste that results in these applications. Most pertinently, wasted costs orders should only be applied for in rare circumstances where the CPS have fallen far below accepted standards, and these figures do not take into account other waste such as loss of court time, costs of bringing in extra representation and so forth. On Monday a report from Oxford Economics further undermined the government argument for their cuts of legal aid. The report was commissioned by the Law Society and stated that because of the fall in crime, the legal aid bill is projected to be £84 million lower by 2018-19. This further seeks to emphasise the fact that the cuts to legal aid do not seem motivated by a desire to balance the books at the Ministry of Justice but instead an ideological move away from a coherent and robust system of criminal legal representation.

The next action to be taken by government largely depends upon the response to the Otterburn report which is expected to be released in late January or early February. Until this report is released there is the possibility of further action lasting a full day or even three days, but nothing has been official confirmed by the Criminal Bar Association or the Criminal Law Solicitors Association. One of the fundamental issues that has been brought to the public’s attention by the protest is the reality of the criminal bar, and there is a greater acceptance that they are not ‘fat cats’. If the Ministry of Justice is truly serious about cutting their budget “fairly” then the government needs to seriously consider alternative measures to cut the budget and put the proposed cuts on hold.

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Tagged: Courts, Criminal Law, Legal Aid

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