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Imposing a second fee cut on criminal firms is an act of political spite which could backfire
Criminal legal aid firms received confirmation of their worst fears last month with the government’s announcement that the second 8.75 per cent fee cut for police station and magistrates’ court work was to go ahead on 1 July. Details have also emerged about the number of tenders received by the Legal Aid Agency (LAA) for duty work. The next few months are likely to see upheaval as firms either fold or adapt to a transformed system. Many are also continuing to fight.
Practitioners feel betrayed by the lack of a meaningful consultation over the latest fee cut, but LAG understands that the former lord chancellor, Chris Grayling, was careful not to offer this. The request for further comments seems to have been no more than a cosmetic exercise. Many criminal defence solicitors are so furious at how they have been treated that they are backing strike action. Depending on the action taken, they could put firms in breach of their contracts with the LAA, but the position is so dire for some that they are willing to take that chance.
According to the LAA, it has received 1,099 bids for duty contracts from over 500 organisations for the 527 contracts available. Three bid zones have not been covered and LAG understands the LAA will approach firms in these locations to ensure duty work will continue to be undertaken after January next year, when the new contracts are supposed to begin.
At least for the Bar and solicitors who have higher rights of audience, the postponement of any cuts to Crown and other higher courts’ fees will give some respite. The government says it took this decision to preserve high-quality advocacy. This is nonsense. We believe ministers wanted to avoid another organised boycott by the Bar and are prepared to play a longer game to reduce the costs of representation in the higher courts. Competition between the Bar and solicitors’ firms is likely to become sharper as the latter seek to offset the cuts for police and magistrates’ court cases by either employing more in-house specialists or looking to retain more costs from the fees they pay the self-employed advocates they retain.
‘As a result of the bidding process, the LAA is in possession of information on firms’ finances. Based on this, it made the judgement call that they can take the hit of a further fee cut.’
As a result of the bidding process, the LAA is in possession of information on criminal legal aid firms’ finances. Based on this, it has made the judgement call that firms can take the hit of a further fee cut. It pointed out that organisations that are successful in their bids will have exclusive rights to duty work in their area and so will enjoy savings of scale. LAG warns that the LAA’s confidence in the financial stability of the sector might well be misplaced and that some firms, despite successfully bidding for contracts, could still be forced to close.
We believe the government’s strategy on criminal legal aid is flawed. With the reduction in the numbers of firms, there is a real risk of cartels forming in criminal defence work, which will suppress competition and lead to fewer access points for criminal defence services. Pressing ahead with the fee cuts and tenders in criminal legal aid is an act of political spite that could ultimately rebound on the government.
‘Body count’ warning over further fee cuts, page 5.