Monday, 1 December 2014

The Tuesday Truth


They know not what they do or do they?

On the 20 November 2014 the National Audit Office stated that a lack of understanding from the Ministry of Justice of its own legal aid reforms meant that the reforms “cannot be said to have delivered better overall value for money to the tax payer”.  Margaret Hodge, scourge of tax avoiders and dissemblers who also doubles as Chair of the House of Commons Public Accounts Committee said that the Ministry of Justice is out of touch with reality and showed no understanding of the wider costs.

A week later on the 27 November 2014, the Ministry of Justice demonstrated its delusional lack of engagement with life as it is lived by announcing that it intended to pursue the two tier contract proposal, and immediately commenced the tender for 527 duty contracts.

The MOJ indicated that the second cut of 8.75% may still be introduced in July 2015, and that the duty solicitor contract proposal would commence in October 2015.

This announcement follows a 3 week consultation on the reports of KPMG and Otterburn.

The response to the consultation by the Ministry of Justice is in my view insulting and patronising to the profession.   Many others will write much more lucidly and coherently about the response, but I will simply make three points: -

1.Duty Contracts        In the Ministerial foreword to the Ministry of Justice response the Lord Chancellor states that these proposals comply with his duty to provide access to justice, and that this proposal provides firms with the certainty of more work.  This is simply nonsense.   As he is well aware obtaining a duty contract does not guarantee a volume of work or any particular type of work, it effectively guarantees the possibility of work, the quantity and value of which is unknown.  Additionally, as his own evidence indicates there is limited scope for economies of scale and therefore the second proposed cut in July 2015 is unlikely to be one that most businesses can absorb.    Furthermore, because of the massive cut in fees – 17½% over 15 months – for firms to stay in business they will have to ensure that the majority of fee earners carrying out this work will be far less qualified and experienced.  With the cut price race to the bottom factory approach that Grayling is effectively creating through this model those vulnerable through mental health issues, disability and addiction, will receive even less attention than they do with the current system.

2.         Own client work.    In response to the consultation the Ministry of Justice states that respondents felt that own client contracts alone would not be viable in the medium term in their own right.   This is in fact not strictly correct.   It is not just respondents who have said this. The expert evidence that the Ministry of Justice has obtained suggests that if a firm does not obtain a duty solicitor contract it is very unlikely to stay in business.  The Ministry of Justice response to this is to say that 1800 providers have applied for and been awarded an own client contract, which means therefore that they see this contract as viable.    However, presumably the author of the report is aware that in order to get a duty solicitor contract one needs to obtain an own client contract.  Furthermore, if partners of firms are contemplating leaving the firm or setting up another enterprise and/or employees are also considering setting up their own firm, then they also need to apply for an own client contract by the deadline.   Consequently their response does not make sense and conveniently bypasses the central issue.

3.         Evidence.     At various points during the response to the consultation the Ministry of Justice make reference to no new evidence being provided.   The response from solicitors and firms working on the coalface is of course evidence, in fact it is expert evidence.  Consequently when the senior partner in my firm who has been practising for over 30 years in a well established east London firm makes various comments about the effects of some of these proposals then he clearly is an expert, he clearly has far more experience than the people writing this response.

The consequence of these proposals will be devastating on Access to Justice and devastating for both solicitors and the Bar.

The London Criminal Court Solicitors’ Association and the Criminal Law Solicitors’ Association have before, during and after our Judicial Review attempted to engage with the Ministry of Justice to warn against proceeding with these dangerous proposals and to persuade the Ministry to embark on a proper process of engagement with the representative organisations to improve efficiencies, and to look at other areas of reforms which may lead to further savings.   We have reminded the Ministry on many occasions that they already have a cut, spend is down substantially, many would say to the obvious detriment of the system which is staggering on delivering a less efficient and most importantly less fair standard of justice.

The Ministry of Justice and the Lord Chancellor are simply not interested.  The reforms to interpreters have ended up costing the Ministry of Justice more rather than less. Prisons and probation are in melt down. All of these travails were predicted in advance by the real experts, those who do the job on a daily basis. The Lord Chancellor is not really interested in evidence, or evidence based decision making. He will go ahead if he can with these proposals and will be long gone by the time the devastating mess, with its attendant costs to the public purse and to public confidence in the justice system, is at its worst.

I am not sure all of the criminal Bar appreciate how devastating these proposals will be for the future.   I am a big supporter of the Independent Bar, but recognise that these proposals will have a devastating effect on the junior Bar, many of whom are already exiled far from a court room, scheduling for the SFO or for white collar firms.

If the solicitors are subject to a second cut of 8.75% then many will struggle to stay in business with or without a duty solicitor contract.

They will need more than ever the whole fee.  Whatever the Bar Council and Criminal Bar Association may or may not do to make it harder for solicitor advocates to appear in the Crown Court, I anticipate there will be a huge increase in in-house counsel.    Many junior barristers doing legal aid work may well find that being paid in-house with a salary is more financially beneficial than waiting to be paid fees at chambers and being subject to rent.  For criminal legal aid work the traditional chambers model as we know it may very well disappear for the majority.

I know that many individual barristers in the Criminal Bar Association responded to the consultation, I am not sure how many chambers responded in their own name, but quite frankly every criminal set who values doing criminal defence work, and every junior barrister requiring more legal aid work must now wake up, because if we do not stop this then in less than 12 months time, Grayling’s car crash of a criminal justice system will be in place.
The LCCSA and CLSA assembled an outstanding legal team when successfully judicially reviewing the MOJ in September 2014. This team has been assembled again and Counsel's advice is being obtained in pursuing a further JR.

All criminal solicitors in London who care about this must join the LCCSA and contact Jon Black, the President.  There has been a strong team of volunteers working very hard for the last 18 months on this campaign, we need more; we can do this.

All solicitors’ practices outside London should contact the chairman Bill Waddington and join the CLSA.  There are many other benefits of being members of both these Associations other than being involved in the campaign, and now is the time to give support.

We must fight this attack on access to justice not just  for the sake of our professional futures, but for all of us and for the sort of country we want to live in

1 comment:

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