05 June 2013
Yesterday (Tuesday 4 June 2013), lawyers held a ‘minute of unity’ to mark the deadline for responses to the government's controversial ‘Transforming Legal Aid’ consultation. Many believe the Ministry of Justice's proposals could undermine this country's internationally-respected judicial system. However, Justice Secretary Chris Grayling is determined to push on with what he views as necessary reforms. We outline the key arguments that are being relied upon by each side.
There is a cross-political consensus that public spending cuts need to be made in the wake of the financial crisis, although the parties differ about how deep they should be. For his part, Grayling has little choice but to implement the reduction of £220m to the criminal legal aid budget demanded by the Treasury – a figure that was agreed by his predecessor, Kenneth Clarke.
Criminal legal aid is being cut by such a large amount (£220m represents close to a quarter of the annual criminal legal aid budget) partly because of public opinion, according to the government. In the foreword of the consultation, Grayling argues that change to the legal aid system is needed in order to ‘boost public confidence’. He adds that costs have ‘spiralled out of control’. Parts of the press have supported this assertion by suggesting that legal aid in England is ‘ five times as generous as the rest of Europe'.
While the government has distanced itself from tabloid terms like ‘fat cat lawyer’, it claims that there is a problem with a small number of senior lawyers making a large amount of money from legal aid. Last month, Grayling told the Law Society Gazette: ‘If you are deriving your income from publicly-funded legal aid it is unrealistic to expect to net an income….of many hundreds of thousands of pounds a year’. The Justice Secretary has suggested that the reforms could financially benefit junior criminal lawyers.
An additional argument that has been deployed in favour of the cuts is that they are necessary to reflect the recent fall in crime. According to the Office for National Statistics, crime is at its lowest level in 30 years.
The government believes that the publicly-funded branch of the profession could be better structured – hence the proposal in the consultation to dramatically reduce the number of legal aid contracts nationally from 1,600 to 400. This stems partly from an ideological belief that the public sector should strive for efficiencies in a similar way to private companies.
Opponents of the government's proposals generally accept that the legal profession must share some of the burden of the cuts. But they dispute the amount. Their starting point is that England is, in fact, not more generous with legal aid than other jurisdictions, with many comparisons failing to take into account the high judicial spending in civil law EU countries. Michael Turner QC, the chair of the Criminal Bar Association, explains: ‘You have a different system there, with investigative magistrates who interview witnesses, and the big cost is the judicial spend’.
In reality, a negligible number of QCs earn large sums through legal aid, with earnings for most criminal barristers and solicitors dwarfed by the salaries of their City counterparts. Writing on the Criminal Bar Association Blog, Marc Brown, an eleven year qualified barrister at 2 Pump Court Chambers, revealed that he earned about £68,000 after tax last year. This is a fairly typical sum for senior members of the criminal Bar. Meanwhile, some very junior barristers and solicitors receive little more than the minimum wage.
At the heart of the government's proposals is price-competitive tendering (PCT). Amongst other things, it will see legal aid clients no longer allowed to choose their lawyers. In restricting the selection of legal representation to the wealthy, many believe that justice will be undermined.
PCT also involves very tight profit margins and fixed lawyers' fees. The fear is that this will create an incentive for clients to plead guilty. Writing in the Huffington Post, Francis Fitzgibbon QC outlined criminal lawyers' concerns: ‘The solicitor will be on fixed fee per case, no matter how difficult the case is. They will have to achieve a massive turnover to break even, on the rates being proposed. They will be under huge pressure to tell you to plead guilty, because preparing a trial will destroy their profit’.
What good, argue criminal lawyers, will it do to open the doors to inexperienced behemoths like the Stobart Group and G4S at the expense of the small solicitors firms who currently hold the contracts? And even if some savings are made through economies of scale, might the new entrants' inexperience not prove costly?
Influential New Statesman legal correspondent David Allen Green describes this part of the proposal as ‘ an assault on localism and choice’. He adds: ‘High Street solicitors have unmatched experience in dealing with local criminal matters: they know the courts, the local probation services, the local barristers, and the local police. All this will be deliberately lost’.
The Save UK Justice e-petition is closing in on 100,000 signatures – the number required to prompt a debate in the House of Commons. Meanwhile, a recent poll by ComRes – commissioned by the Bar Council – found that two-thirds (67%) of the British public agree that legal aid is a price worth paying for living in a fair society.
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