This response is made on behalf of Deans Court Chambers, 24, St John Street, Manchester, M3 4DF and 101, Walker Street, Preston, PR1 2RR. Deans Court Chambers is a set of 81 QCs and barristers practising in the North West of England in civil, criminal and family law.
We do not believe the points we wish to make can be adequately put on the online response form. We therefore respond as follows.
The Ministerial Foreword
We reject as untrue a number of assertions made in the Ministerial Foreword to the consultation.
We do not accept that “the system has lost much of its credibility with the public.” The English legal system not only has a strong reputation historically, but is evidently the system of choice and is where many choose to conduct litigation when they could do so in other jurisdictions. This is a sign of huge confidence in the English legal system and a very significant source of national income. The Minister recently boasted that legal services contribute £4 billion a year in exports. As we explain below, the MoJ’s proposals run the risk of inflicting serious and irreparable damage on this country’s reputation and upon a valuable source of foreign earnings.
We do not accept that “the cost of the system [has] spiralled out of control.” Between 1997/98 and 2012/13 expenditure on legal aid rose by 36% in absolute terms. During this time the government’s preferred measure of inflation rose by 35%, average earnings rose by 60% and GDP by 83%; health spending increased by 128% and defence spending by 91%. The cost of the legal aid budget is approximately 37p per week per head of population. We believe that the public, if properly informed, would regard this as good value. The headline cost adopted in the consultation relates to work billed in 2011/12 and does not reflect savings already made by savage cuts in Legal Aid. The Legal Aid Agency’s business plan published in April 2013 anticipates a significant reduction in the money the Government will spend on Legal Aid. This does not begin to represent cost spiralling out of control.
We reject, and resent, the implication that cases are made to run on and on for the benefit of lawyers. If that is the case, those lawyers are not members of these chambers. In our experience, counsel practising on the Northern Circuit seek to resolve cases proceeding through the Crown Court at the earliest stage possible and are willing to offer strong advice where a guilty plea is appropriate. It is the criminal lawyer with good judgment and expertise who can resolve cases without need for a trial. This represents a significant saving to the public purse. Cases that run as trials are dealt with expeditiously. Evidence is agreed, formal admissions are drafted and submissions are succinct. That is our individual and collective experience. If there had been any discussion with those involved in the sharp end of the criminal justice system before these proposals were drafted it may be that such misconceptions would not have found their way into this paper. It is most surprising that such proposals could be drafted without any proper discussion with those who provide that advice and the representation. Good advocates attract work and are therefore busy advocates. They have no need to drag cases out as is implied in the Ministerial Foreword.
We suggest that if the MoJ made the public aware of the true facts, rather than the inaccuracies recently reported by the press, the public confidence that concerns the Minister would not be at risk.
We do not accept that a significant reduction in eligibility for Legal Aid will result in significant savings for the taxpayer.
Most of us in these chambers have experienced cases in which a litigant represents himself. Much court time is wasted whilst the litigant in person addresses irrelevant issues, with the judge trying to persuade or cajole him or her to focus on the real issues in the case. In criminal cases, the ignorance of a litigant in person may lead him or her to mention matters of which the jury must remain ignorant. The consequence is that the judge will have to discharge the jury and re-start a trial at potentially huge expense of money, time and court resources. Disappointed litigants in person will often seek to pursue hopeless appeals with further waste of time and resources. We cite the example of Wright v Michael Wright Supplies  EWCA Civ 234.
The result of the significant reductions in the availability of Legal Aid will be that many more litigants appear in person.
We invite the MoJ to state what account has been taken of this waste of resources in producing the figure that is said to be saved by the proposals under consultation.
The proposed competitive tendering model for criminal legal aid
We recognise that it is not (yet) proposed to introduce competitive tendering for Crown Court advocacy. We deal below with the further cuts in counsel’s fees proposed in this consultation. We are gravely concerned at the MoJ’s proposed competitive tendering model and the consequences for criminal justice. The features of the model upon which we wish to comment are as follows:
- It is proposed to reduce the number of providers of criminal legal aid services from 1,600 firms of solicitors to 400 “suppliers.” As the consultation document concedes, “This would require a major structural change in the market.” We are concerned that the MoJ gives no indication of how this structural change would be managed. Given that for any firm to survive they will have to bid in a number of CJS areas, the number able to bid will be lower than 400. We believe that the effect of this proposal would be to concentrate legal services in relatively few, powerful, hands and, in the process, destroy many of the small or medium enterprises upon which our economy relies so heavily. We simply do not believe the MoJ’s assertion that there will continue to be a large proportion of SME providers. We are concerned that many local firms of solicitors whose practice includes criminal legal aid work will cease to practise. On any view, there will be a haemorrhaging of talent and expertise as skilful criminal lawyers lose their livelihoods. This will circumscribe access to justice.
- We have no confidence that the MoJ is capable of delivering the required structural reform in a properly managed fashion. We recall with dismay the letting of the contract for court interpreters, rightly described by the Parliamentary Justice Committee as “shambolic”.
- It is proposed that the contracts be let to the lowest bidder. There appears to be negligible control over the quality of the lawyers delivering the service, merely an (as yet undefined) requirement that the supplier should hold some “relevant quality standard.” We cite as an example of the inadequacy of internal quality control our experience of CPS HCAs over recent years. We would wish to note that there are some CPS advocates who are competent, efficient and have judgment. In our experience, they are few and far between. We are not so insular or superior to think that advocates of ability must have come from the independent bar. But experience of the in-house CPS HCAs suggests that the vast majority do not meet the required standard. These are advocates who do not have to compete on the open market. Their alleged quality is assessed in-house. The public who have been victims of crime would lack confidence in the advocate prosecuting their complaint if they were able to assess the quality of preparation and advocacy provided by the majority of employed CPS HCAs.
- It is proposed that the client should have no choice in who represents him or her. We regard it as profoundly unjust that a person accused of a serious crime can be allocated a lawyer of indifferent ability and limited experience purely on the basis that the lawyer’s employer provided the lowest tender. How might an accused with a particular racial background react who would ordinarily choose a solicitor with understanding of particular racial, cultural or language needs? One can easily imagine an unwillingness to accept unpalatable advice from a lawyer of a different background who has been assigned to an individual on some arbitrary basis. Such an accused can cause difficulties throughout a case that might otherwise have cracked.
Graduated fees and VHCC fees were set as a result of the Carter Review and have not been updated to reflect inflation or the real rise in the cost of living since that time. That represents a saving in itself. The fees recommended by Lord Carter have been repeatedly cut since being introduced. The new proposals involve another drastic fee reduction on top of the saving generated by not reflecting inflation and the substantive cuts inflicted upon Crown Court advocates since the introduction of the Carter-recommended fees. It is clear that even at current rates an advocate willing to undertake such work is doing so at well below the market rate. In short, the government is already getting a bargain. We append to this response a series of tables identifying the persistent erosion of counsel’s fees in criminal cases.
Taking into account the pre-trial hearings, conference and drafting of documents necessary in almost all cases gross fee receipts for criminal advocates will be around £200 per day. Given the proposed tapering of fees in trials it may often be significantly less than that. The proposal includes provision for counsel in a long running case in the Crown Court (by definition a serious one) of £14 per day gross – just over 2 hours’ work at the National Minimum Wage.
From any fee received a barrister must cover the costs of travel, business accommodation, staff, practising certificate, textbooks and legal resources, sick pay, holiday pay, pension provision and all the other sundry expenses any business has. Though self-employed barristers are efficient and have relatively low overheads, these costs need to be covered. There is no expense account. There are no perks. Taking these costs into account shows the unfairness of the comparison the minister makes between barristers’ fees and ministerial income.
Prosecution fees are currently set to remain as they are at present. Whilst we accept that the precise fee need not be the same for defence and prosecution, we suggest that they should be of a similar order to satisfy the principle of equality of arms. Confidence in a system must entail confidence in the professionals implementing it. Advocates of quality are not going to be attracted to criminal legal aid work at these rates of remuneration. Indeed there has already been a considerable move away from this area of work within the profession, even on the current rates.
We assume that the intention is to remove the independent bar from the equation in terms of publicly funded work. Whether that is the intention or not, that will be the result.
Damage to the fabric of justice
Criminal justice is at the heart of any legal system. Imprisonment is the ultimate sanction the state can impose upon one of its citizens. The reputation of English law depends to a significant extent upon the manner in which it deals with persons accused of a criminal offence.
We believe that the competitive tendering model proposed will severely damage the criminal justice system and consequently the reputation of English law. Removing any choice of representation from an accused person is unfair and unnecessary; requiring a person accused of a grave crime to be represented by the lowest bidder is grotesque.
The independent bar ensures that both prosecution and defence can be represented to a high standard at a low cost for the most serious cases. We believe that the proposals the MoJ makes jeopardise the continued existence of the criminal bar. The fees proposed are uneconomic. People with the qualities required to make a competent criminal advocate will be able to earn much more in other fields. It is entirely likely that the “suppliers” who have been allocated accused persons will wish to represent them “in-house” using employed HCAs. The proposals, if implemented, will result in a massive contraction of the criminal bar.
Court of protection and judicial review work
Court of protection work involves the most vulnerable in our society: the liberty and well-being of those incapable of making important decisions about their own lives.
Stringent conditions already regulate access to public funding. Obtaining public funding is extremely difficult and time consuming. Applications for public funding frequently fail. If they do succeed, then they are subject to limits, which cannot be exceeded without prior authority. Legal Aid rates have already decreased by 10%.
The consequence is that in any Court of Protection case, there are many litigants in person. Lack of access to public funding already prevents applications being made (for example in welfare matters arising out of a case where there is a lack of capacity, where access to representation is determined by an ability to pay). The proposed reforms will not improve this situation; they will make matters worse.
The current rates for legal aid would make it impossible to rack up fees far in excess of incomes earned by public servants as the Minister suggests. The reduction of hourly rates by 50% or so to barristers cannot be justified on the grounds proposed. The proposition that barristers are paid more than solicitors for the same work is based upon no analysis of the division of the work as between the branches of the profession. Within this area of law, it is solicitors who take instructions, draft witness statements and exchange correspondence with other parties. It is still rarely the case that a solicitor will act as an advocate. The barrister instructed will be responsible for preparing the case for trial, and assembling all legal arguments to be put before the Court. This is not the same level of skill that is required for the more quotidian tasks expected of solicitors, and for which the current rate paid is barely adequate for them. To reduce the rates by 50% will not improve access to justice. It will mean that fewer barristers undertake work of this kind (as has already happened with publicly funded family work, for example). Local Authorities (who are almost always involved in such cases) will be able to afford to instruct Counsel (although it is to be noted that there are no ‘fat cat’ members of the Bar who derive their income from representing a local authority).
We do not believe that paragraph 6.10 of the consultation document bears scrutiny. This paragraph purports to justify a reduction of 10% in fees for care work.
- “The decreasing duration of cases.” This proposition ignores the increased work required in pre-proceedings and in the first 12 days; the work still has to be done; there is now less time in which to do it. This does not justify a reduction in fees.
- “The amount of work involved.” The consultation does state, though it implies, that there will be a reduction in the amount of work. We cannot see upon what basis this implication is made.
- “The further efficiencies to be gained.” We do not understand what further efficiencies are here referred to.
This is simply a cut in fees for which no justification is provided. The proposal is evidence of a worrying trend that reforming family justice is purely cost driven.
The proposed reduction in experts fees is unnecessary given the reduction in use following the new Part 25 and the current fee structure has significantly reduced the pool of experts available and further reductions will exacerbate the problem.
Response to consultation questions
We have responded to those questions to which we feel we can give a helpful answer.
Q2. Do you agree with the proposal to introduce a financial eligibility threshold on applications for legal aid in the Crown Court? Please give reasons.
The income threshold of £37,500 per household for legal aid qualification concerns us. It applies with reference neither to the nature of the household nor the type of case. A single person facing a two day assault trial will be in an entirely different position to someone with dependents facing a four week fraud case. The proposed system allows little or no distinction between these two scenarios. It is an excessively blunt instrument. The Bar has made representations in the past as to how defendants with income or assets could pay for their representation in whole or in part. We understand that such representations have fallen upon deaf ears. We find this surprising.
Q3. Do you agree that the proposed threshold is set an appropriate level? Please give reasons.
Please see our answer to Q2.
Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
The proposal appears to be that a person who is affected by a decision of a civil court in England and Wales and whose case has merit should be deprived of access to justice if he has not a sufficient connection with the UK. This strikes us as unfair unless there is some sound and proportionate reason why a person should be treated in this way. Is this measure intended to pander to the right-wing press? Is it intended to save money? We have seen no evidence that this measure will result in any savings.
Q6. Do you agree with the proposal that legal aid should be removed for all cases assessed as having “borderline” prospects of success? Please give reasons.
There are many cases in which the outcome may depend upon the construction of obscure statutory language that has not been the subject of decision or upon the resolution of conflicting decisions and which must therefore be classified as “borderline”. Such cases may be of huge importance to the litigant (and quite possibly to many other litigants in a similar position). Such cases would cease to be eligible for legal aid. This would not merely prevent the litigant’s legal advisors from getting paid, but would deprive the litigant of cost protection. We regard this as profoundly unfair.
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
See our introductory comments.
Q8. Do you agree that, given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.
See our introductory comments.
Q9. Do you agree with the proposal under the competition model that three years, with the possibility of extending the contract term by up to two further years and a provision for compensation in certain circumstances for early termination, is an appropriate length of contract? Please give reasons.
We reject the competition model for the reasons set out in our introduction.
Q10. Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset /Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.
We reject the competition model for the reasons set out in our introduction.
Q13. Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.
We reject the competition model for the reasons set out in our introduction.
Q14. Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.
The proposed significant reduction of the number of suppliers in each procurement area is one of our principal objections to the proposed competition model: see our introduction. Reducing the number of providers and then depriving any other provider of work is a certain recipe for ensuring that competition will be severely limited when the contracts are up for renewal. The proposal is building significant barriers to entry to this work, which will have significant knock-on effects upon the effectiveness of the competitive model.
Q17. Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.
This proposal is one of our principal objections to the proposed competition model: see our introduction. We do not believe that a member of the public would think it fair if his son were wrongly accused of rape by an angry ex-girlfriend and was told that he would be allocated without any choice a representative employed by a supplier that had made the lowest bid.
Q18. Which of the following police station case allocation methods should feature in the competition model? Please give reasons.
Option 1(a) – cases allocated on a case by case basis
Option 1(b) – cases allocated based on the client’s day of month of birth
Option 1(c) – cases allocated based on the client’s surname initial
Option 2 – cases allocated to the provider on duty
This Kafkaesque question is an example of why the proposed competition model is objectionable.
Q19. Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the Legal Aid Agency or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.
For the reasons set out above, we object to “allocation” of legal representatives.
Q20. Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.
For the reasons set out above, we object to “allocation” of legal representatives. Accused persons sometimes change their legal representatives for good reason, for example, loss of trust between lawyer and client. It would be quite wrong to prohibit this from happening and thus to lumber the lawyer with a client he cannot feel he can represent fairly or the client with a lawyer whom he does not trust. Though we accept that a small number of accused seek to change representatives without good reason, we do not agree that this is a prevalent problem or one which requires the draconian remedy proposed.
Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:
- introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
- reduce the initial daily attendance fee for trials by between approximately 20 and 30%; and
- taper rates so that a decreased fee would be payable for every additional day of trial?
Please give reasons.
We refer to our introductory remarks. Rates for criminal advocates have fallen very significantly in real terms and further reductions of the kind proposed would have an extremely negative effect on representation. We assume that the object of tapering fees is to incentivise advocates to reduce the length of trials. We reject the implication that counsel extends trials any longer than is necessary: the proposed taper is a punishment for representing our clients properly. The absurdity of this scheme is shown by the fact that the tapered fee falls to £14 a day.
Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%? Please give reasons.
No. See our introduction.
Q28. Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons.
We reject the premise that such a reduction should be applied at all.
Q29. Do you agree with the proposals:
- to tighten the current criteria which inform the decision on allowing the use of multiple advocates;
- to develop a clearer requirement in the new litigation contracts that the litigation team must provide appropriate support to advocates in the Crown Court; and
- to take steps to ensure that they are applied more consistently and robustly in all cases by the Presiding Judges?
Please give reasons.
We agree that clear criteria are required to justify more than one advocate. The over-riding object must be to ensure fairness. We see no objection to oversight by the Presiding Judge, but we point out that Presiding Judges already have an extremely heavy workload. It would be unfair to the PJ to expect him/her to read the papers in every case in which an application was made for additional counsel.