The fight for justice
This column documents evidence of the effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Readers are invited to send in relevant information for publication. Please see the inside back cover for further details.
Last month the government announced some concessions and a further consultation on changes to legal aid. In this article Steve Hynes, LAG’s director, reflects on these changes and their likely impact on practitioners and access to justice.
A typical legal aid lawyer must feel like a boxer, caught on the ropes by a very large and completely mismatched opponent, the coalition government. Fee cuts last year and the cuts in scope introduced in April this year were swiftly followed by another consultation, also in April, on further changes to legal aid, including more cuts to fees and the introduction of competitive tendering for criminal legal aid (see also page 4 of this issue).1Transforming legal aid: delivering a more credible and efficient system, MoJ, April 2013; available at: www.gov.uk/government/consultations/transforming-legal-aid-delivering-a-more-credible-and-efficient-system.
At the heart of these proposals, and the further consultation announced last month, is the administration’s aim to lop a further £220m off the legal aid budget by 2018/19.2Transforming legal aid: next steps, MoJ, September 2013; available at: https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps.
If the government succeeds in this, legal aid will have been reduced by more than one-quarter under this administration, and LAG would argue that there is far more at stake than just the income of practitioners.
Looking at the announcements on criminal legal aid last month, it might be useful to reflect on the comments of Lord McNally at the All-Party Group on Legal Aid meeeting in January this year.3See: www.appg-legalaid.org/images/22january.pdf.
Referring to controversial remarks by Chris Grayling, the Justice Secretary, in which he questioned whether the state should pay for a ‘Rolls-Royce’ service for defendants, Lord McNally said his then new boss ‘liked to pop balloons’ to get attention.4See: www.lawgazette.co.uk/analysis/grayling-takes-aim-at-the-bar/69121.article.
While it is to be welcomed that the government climbed down on plans for competitive tendering and to deny clients the right to choose their representation in criminal cases, LAG would ask whether these proposals were just headline-seeking red herrings. Perhaps the government had little intention of pursuing these proposals, but they had the advantage of detracting from the other damaging proposals. It was certainly the case that the suggested competitive tendering scheme could not have got off the ground without substantial alteration.
Whether or not the government was serious about its competitive tendering proposals, the plans had the effect of uniting the legal profession behind a campaign against them. The reason for this unity was that the proposals did not benefit any interest group among solicitors, as the number of criminal legal aid firms would have been reduced from 1,600 to 400 and the casualties would have included every type of firm, large and small.
Practitioners are relieved that the competitive tendering proposals have been defeated, but they are a long way from getting out the bunting and celebrating with unrestrained joy, as the cuts in fees will have a devastating impact on their earnings. The government is proposing a cut of 17.5 per cent, to be introduced in stages, with the first cut of 8.75 per cent due to take place in February next year to be followed by a second cut in May 2015.
The fee cuts last year and the falling volumes of work are already hitting firms. According to the Ministry of Justice (MoJ) there has been a ten per cent decrease in Crime Lower (mainly magistrates’ court, police station and prison law work) in the last five years. Crime Higher (work in the Crown Court and above) dropped by 12 per cent last year.5See Legal aid statistics in England and Wales. Legal Services Commission 2012–2013, MoJ, 25 June 2013, available at: www.justice.gov.uk/downloads/publications/corporate-reports/lsc/legal-aid-stats-12-13.pdf.
It is likely that more practices will go out of business, following, for example, Carney Solicitors which was forced recently to do so. The firm, one of Stoke-on-Trent’s leading criminal law firms, undertook mainly criminal legal aid work and, as a result of falling workloads and legal aid changes, called in administrators in August.6See: www.thisisstaffordshire.co.uk/Hanley-firm-defence-legal-aid-shake/story-19618124-detail/story.html#axzz2eakEgHvx.
Until recently, the firm had employed 43 staff but, when it folded, only 14 remained.
Given the falling volumes of work, the Law Society, we believe, was right to try to persuade the government to manage a reduction in the number of firms rather than introduce competitive tendering. Also, while practitioners are reluctant to go on the record about it, there is a need to stop the abuse of the police station duty solicitor system. Stories abound of solicitors selling their duty places, and so the proposal to tender the slots using a quality and capacity assessment to allocate them would seem to make sense. A joint independent report to assess the number of contracts to be awarded has also been commissioned by the Law Society and the MoJ.
The MoJ is consulting on two alternatives for Crown Court fees: a modified scheme from what was proposed originally which sets a floor on fees; and a second proposal made by the Bar, which simplifies the fee structure and is similar to that which was adopted by the Crown Prosecution Service last year.7See note 2, Transforming legal aid: next steps, p50.
A large cut of 30 per cent in very high cost cases remains in the second consultation and seems likely to happen unless a game-changing strike or similar action forces the government’s hand.
LAG believes that the fee cuts in both criminal and civil legal aid will further undermine the viability of the network of legal aid providers. The cuts will also have an impact on quality, as firms and other providers shift legal aid work to less qualified and less experienced fee earners and are forced to take other measures to cut costs. This, though, is perhaps the more slow-moving element of a pincer movement the government has instigated to immolate access to justice: the proposed changes to scope and the legal aid rules will have the most immediate impact. Most tellingly, the scope cuts in, for example, prison law and judicial review do not have the justification behind them, however dubious, of reducing the fiscal deficit, but are more blatantly ideological in nature.
At the moment, practitioners are pausing and contemplating what to do next. Many remain furious about the fee cut and argue that they will have the same impact that competitive tendering would have had: ie, to force many out of business, albeit over a longer timescale. Civil legal aid practitioners are in a similar position, but without any concessions from which to draw comfort.
There are dark mutterings among criminal law practitioners about taking strike action over the pay cut. The realpolitik of the situation is that this is the only way that any concession on pay will be made by the government. Chris Grayling’s hands are tied by the Treasury. He has limited wiggle room within the MoJ budget. The major disruption to the criminal justice system that a strike, or coordinated ‘training day’, could cause would be difficult for the government to ignore. The problem is that solicitors’ threats of collective action, the most recent of which was a boycott of new legal aid contracts in April 2007, have come to nothing in the past – but maybe this time it would be different? Solicitors would have an ally in the criminal Bar, which LAG understands is also contemplating action.
Holding the state to account
All prison law, apart from sentencing and disciplinary matters that directly engage human rights, is proposed to be removed from the scope of legal aid and will lead to 11,000 fewer cases. At £4m, the amount spent on these cases is a drop in the ocean of government expenditure. However, politicians are often caught between, on the one hand, the easy rhetoric of punishment, and, on the other hand, making the necessary, hard policy choices to ensure that the penal system rehabilitates, rather than acts as a revolving door to, offenders. Unfortunately, Chris Grayling, in proposing the decimation of legal aid for prison law, has opted for the former rather than the latter.
Like judicial review, prison law acts as an important check on the state to ensure that it does not abuse its power, including putting in place the resources necessary to ensure that prisoners’ rehabilitation and civil rights are upheld (see page 3 of this issue). LAG believes that there is a conflict of interest at the heart of the policy to cut legal aid for prison law. Chris Grayling is choking off legal challenges, such as the failure to provide adequate education and training courses in prisons, which his department is responsible for funding. This illustrates both the incongruous role that the Justice Secretary inhabits, since the office-holder took over responsibility for prisons under the last government, and the drift towards more direct political control of the justice system.
The proposed removal of the ‘borderline’ merits test (which applies to cases with borderline prospects of success, but which have special features such as a wider public interest) is another example of the exclusion of a small number of cases. These are estimated by the MoJ at around only 100 per year at a cost of £1m, which are of importance in holding the state to account. These are the sort of test cases which also have a wider public policy role in interpreting legislation and setting the boundaries of the state’s responsibilities.
Some concessions have been made on the proposed residence test, which would require people to prove that they have been resident in the country for 12 months or more before claiming legal aid. The government has attempted to head off opposition by introducing exemptions for victims of trafficking or domestic violence and in some cases involving children. LAG is concerned about how these exemptions will work in practice: much will hinge on the detail of the regulations which, for this and the other proposed changes to legal aid, are due to be brought forward in secondary legislation next year. The failure of the exceptional cases rules does not instil confidence in the effectiveness of any exemptions system (see page 5 of this issue).
The proposed residence test is especially reactionary and ill-conceived. A narrow strand of opinion that scapegoats foreigners for all the country’s ills might find it acceptable, but mainstream political opinion understands the need to maintain the UK’s international reputation for upholding the rule of law. A country that routinely denies access to justice to foreigners within its jurisdiction cannot try to claim any moral superiority. Aside from this, ensuring equality before the law is the duty of any democratic country and the UK is bound by international law to do so.
A human rights expert described the residence test to LAG as ‘low-hanging fruit for judicial review’. The European Convention on Human Rights (‘the convention’) article 1 requires all states to secure the rights of the convention to ‘everyone within their jurisdiction’. Combined with the UK’s obligations under articles 6 (right to a fair trial) and 14 (prohibition of discrimination), the residence test does indeed look ripe to be picked off by a legal challenge.
Rule of law under threat
The cuts in legal aid are bleak, but such is the gravity of what this government is proposing that it is difficult not to conclude that we are also in danger of losing the battle over state interference in the justice system. Without substantial concessions, it will not only be legal aid practitioners feeling the pain: increasingly, the principle of the rule of law itself will look punch-drunk and in danger of hitting the canvas.