It is hoped that this response is brief as it possibly can be, concentrating on areas where strong views are held or a significant contribution can be made.
It is a great shame that after 10 years of austerity within Criminal Legal Aid, the Ministry of Justice is seeking to impose further cuts of £220m particularly when in real terms this area of public expenditure is costing the tax payer approximately a third less than it did only six or seven years ago. It is equally shameful that the principle of choice, so central to Government thinking, in other areas is abandoned. It is proposed to commoditise some of society’s most vulnerable people as client choice is sacrificed on the altar of price competition.
To allocate fixed volumes of work in an act of ‘Market Stalinism’, where work levels are close to guaranteed regardless of quality of service, will have a hugely detrimental effect on quality at the expense of justice. Moreover, firms already configured to provide a quality of service will be forced to reduce capacity; in Olliers’ case down to about one third of our current workload – notwithstanding our current peer review level 2 and the fact that we are Manchester Legal Awards Crime Firm of the Year for two of the last three years.
Where to start? Removing client choice would be a huge mistake. It is at odds with Government thinking and the publicly stated utterances of the Prime Minister in terms of education, health and other public services. Those caught up in the criminal justice system are some of the most vulnerable people in society going through what may well be their most traumatic life experiences. Choice drives quality. Our criminal justice system should convict the guilty and acquit the innocent. To create a system where defendants have no choice will have terrible unforeseen consequences that have not been considered in the impact assessments. The psyche of many people appearing before the criminal courts has not been taken into account. Some defendants simply would not accept having a solicitor imposed upon them. This will have hugely detrimental effects to the smooth running of the justice system.
Solicitor of choice in the Magistrates Courts in particular is the biggest asset in terms of the smooth running of the process. The average day in Court could last one or two hours longer in every Court room in the country in perpetuity with huge knock on costs for the Crown Prosecution Service, the Court staff, the cell staff and so on. There is a fair argument to say that Court capacity would need to increase in the Magistrates Court in particular by, for example, 20% to take into account the additional delays caused by every client being, in effect, a new client, forever!
We completely disagree with the notion of tendering based upon price competition. There is already great competition in the market place which is what drives quality. It may well be that the market needs to consolidate. There may be a case for saying there are too many providers and from the body of 1600 or so firms undertaking criminal defence work there is a long tail of firms undertaking very small amounts of criminal defence work. Also, with limited resources available the concept of ‘cherry picking’ whereby certain firms only undertake larger, expensive cases can no longer be justified.
However, if there is to be a paradigm shift, price competition is not the way forwards – it will only undermine quality with devastating unforeseen consequences, some of which may be irreversible. Miscarriages of justice are obvious consequences, and loss of confidence in our judicial system will have international ramifications to the detriment of the country’s reputation. It is noted that the Justice Minister is keen to market the UK as a centre of excellence and a jurisdiction in which litigation should take place. The reputation of our Criminal Justice system is hugely important in terms of the overall reputation of our legal system and this point seems to have been overlooked. It is also fairly clear that many of the economies achieved by the ‘race to the bottom’ of price competition will be false economies.
Financial Eligibility and Costs from Central Funds
The proposals relating to a financial eligibility threshold might also include capital assets above a certain level. Indeed, it is perhaps easier to free up capital to fund a criminal defence than it would be to fund a defence from income.
In terms of payment from Central Funds, it is in the taxpayer’s interests for a successful defendant to recover costs at legal aid rates. This should apply to any defendant who funds their case privately. The idea of a defendant having to “go through the motions” of a legal aid application seems nonsense.
The Ministry is in a no lose situation in introducing this provision for all successful defendants and the saving to the taxpayer would be in respect of unsuccessful defendants who chose to fund their defences privately. The current proposal places pressure upon those individuals to apply for legal aid at the expense of the taxpayer.
The intention was to keep this response as short as possible and not deal with all questions. The concept of transforming legal aid with central tenets of price competition and the removal of client choice is flawed. It is not accepted that further cuts to expenditure in criminal legal aid need to be made due to something like ten years of austerity in this area. However, if savings have to be made then this should be through an alternative method of market consolidation. One possibility is tendering based upon quality with administratively set cuts and a maximum number of providers. This would create the paradigm shift in the market.
Alternatively, it could equally be done by minimum contract sizes and an insistence that all those undertaking publicly funded criminal defence work had to undertake minimum levels of crime lower and not cherry pick the best ‘crime higher’ cases. Both options would ensure that committed criminal practitioners could remain in the game (in some cases having had to merge with other providers), continuing to provide a quality service. With fewer providers there could be greater opportunities for economies of scale which would make the cuts slightly more bearable.
Moreover, appropriate amendments to the defence costs provisions could mean that more clients would chose to pay privately thereby reducing the burden on the State save in the case of acquitted defendants.
There should also be consultation with The Law Society and other bodies to see what other savings could be made from within the system so as to reduce the need to make savings in legal aid. It is not proposed to go into great detail here but one very simple example would be increasing sentencing powers at the Magistrates Courts thereby increasing the number of cases that remain in the Magistrates Court.