Monday, 15 June 2015

The Tuesday Truth

Criminal Solicitors: An endangered Species

The statement from the Legal Aid Minister last Wednesday 10th June 2015 makes no mention of my profession…….a solicitor.

It refers to maintaining high standards of advocacy but does not mention the quality representation provided by Solicitors in the main in the Magistrates Court where all criminal cases are heard at some stage. It also does not consider the difficult job done by solicitors at the police station, often the most significant part of any criminal case.

 The statement does refer to litigators and I suspect that Mr Vara does not care whether the litigator is an experienced Solicitor or legal executive, a paralegal or someone just out of school.

The sexy public side of criminal defence is performed in the Crown Courts by Higher Court Advocates, the majority of which are from the Independent Bar (currently). It is those wigs and gowns which everyone recognises.  This is why when those wigs and gowns were outside the court protesting and not inside the government knew they had a problem and had to do a deal.

Mr Vara knows it is that image he needs to avoid and so there is his public flirtation with the bar

The implementation of no returns last year proved to be a huge problem for the government. There were cases in Crown Court's across the land that simply couldn't be covered. Don't get me wrong they did their best and called in every PDS Advocate they could to traipse across the country covering cases.  In one case a QC was called into cover a trial at Liverpool Crown Court that wasn't a case for a Silk and at what cost to the public? The fact is the government need the Bar on side to force consolidation upon solicitors and inflict in excess of 17.5% cuts to our fees. They are determined to make their savings at whatever the cost and so in a nod to the Bar once again we see the AGFS protected. Clever tactics Mr Vara and Mr Gove might think but those of us in practice know better. In protecting the AGFS they are ring fencing an area of work which solicitors will have no choice but to try and capitalise upon. Whether they do this by way of Solicitor Advocates or by way of employing in-house Counsel they will be forced to do it to make up for the savage cuts that they are about to sustain.

Whilst the Solicitors receive this cut in the name of "austerity" after 20 years of cut after cut it is even more disappointing to learn that the Chief Executive of the Legal Aid Agency has received a £20,000 pay rise to take his salary to £225,000, a reward perhaps for reducing scope, access to justice and state accountability. Those that deliver this work at the coalface , who try to protect the vulnerable face cuts to subsidise those who implement policies which may lead to more litigants in person, more advice deserts and the meltdown of a justice system. Something does not seem right here!

 Their initial premise was cuts of 17.5% in exchange for consolidation. We  saw an 8.75% cut in March last year with no consolidation. That first cut has already seen some firms go out of business and many make staff redundant.  We are now about to get the second one for 6 months also without consolidation. Their promise of a review after the cuts and reform ( ie shoot first and ask questions after) is lamentable. If they had any true concerns they could conduct a pilot. They haven't and they won't.

You might ask yourself why it is that Gove has decided to implement the cut before consolidation. Grayling and the MoJ have always openly acknowledged that that the current supplier base couldn't sustain the second cut without consolidation. What's changed? Two tier is underway they have their time table and they have their tenders. Is there a sudden requirement to save £X by the 31st of August or is it that they now realise that two tier isn't going to work. That would be the perfect reason to change the course of their plans. Two tier is about to become a spectacularly embarrassing failure, not good when the profession have been telling them it would be for two years. Gove however is a shrewd man and sees that there is opportunity to force consolidation through the back door. Impose the second half of the 17.5% cut and allow survival of the fittest. Those who can survive the cut might see an increase in volume from the firms forced to close, of which there will be many. Great job by Gove, he even gets to announce in a few months that having listened to the profession he has decided not to press ahead with two tier - the perfect cover up. Not convinced? Ok so they implement the second cut because you don't do anything about it. You choose not to protest because your firm was ok with the two tier, you wanted the increase in volume. The reality is you only wanted the increase in volume because you knew you couldn't sustain the second cut without it. You have problems now. You submitted your tender, you don't know the outcome and yet you now face at least six months operating at a further 8.75% less with no increase in volume. That's a big problem for cash flow. Your firm needs to make it through six months hoping to get a contract. Are we not now at the point where the work is not worth doing, if not now, when will it be, at a 20% cut, or 25%?

Whichever way you look at it as a profession we've been shafted. We dared to challenge them twice in court, unforgiveable!!!.   Criminal lawyers were not rushing to the polls ticking the conservative box. They know that in the main the bar are visible side of criminal justice, keep them happy, no one needs to know what is going on behind the scenes.

They thrive on our lack of unity, there are always firms somewhere who will see an opportunity, we will take the cut because we will have much more work”. These firms need to wake up. This is the beginning of a 5 year term for this government and legal aid is not a vote winner. Those who survive this cut and the duty contracts tender(if indeed it ever comes to fruition), will be in the firing line for the next cut and the next reform which is likely to come in the next 5 years. I saw on Facebook that Dominic Grieve said that they came for us because we were a target of little resistance and this of course is common sense. They need to make savings; solicitors make a noise but never cause a problem so they will simply keep going. Grayling always made it clear that two tier was only part one of his plan. Once they have 527 firms in place it becomes a more manageable task to get the larger organisations such as G4S, Serco and Capita on board. After all this is what this government do best, sub-contract to large companies regardless of their capabilities. If this doesn't concern you then it should. Yes you might be "fortunate" enough to get a contract but what's going to happen to you in four years time when they start the process again. You'll do something about it then right? Wrong, there'll be no support from the public and less of us to provide support. There's also every chance they'll continue to extend the PDS which will put to bed any ideas of a protest. 

There will always be someone who will turn up at the Magistrates Court or the police station; there will always be someone who will provide the cover and the MOJ know that.

And if anyone dares object they will send out those contract notices, I mean the contracts themselves with their numerous extensions are probably unlawful but after all its the Ministry of “Justice”, so we have to play by their flexible rules.

Its an inappropriate analogy but sometimes solicitors who get great pride in protecting the interests of their clients through passionate advocacy ironically are like the abused partner in a domestic relationship and they simply go back for more and more, just taking it, time after time. They will stop sometime! I dont think so.

The bottom line is that in the end we will have substandard justice system where those accused of offences will have defence teams lacking the proper resources to do the job. The vulnerable, the young and the mentally ill will be even more compromised when caught up in this system.

I personally have been patronized by the Justice Ministers and civil servants enough. I sat with a few others in a meeting a few weeks ago with Mr Gove, Vara and various civil servants Mr Gove was polite, charming and appeared engaged, but with a very insincere “Hmmm” which he deployed far too often as he pretended to be really interested.

He said that would welcome other suggestions for savings they could make to the legal aid system which upon reflection seems analogous to throwing him next weeks winning lottery numbers from the Titanic.


The LCCSA and the CLSA have set up a hub, please log in.

The bar recognize that Varas flirting is nothing more than a tease and the preservation of their fees will mean nothing if there is no work.

The MOJ make up the rules as they go along, they do not care if the duty solicitor tender works or not, they will patch something together, after all it's only now that they accept there may have been overcrowding in prisons, they will move the goal posts whenever they see fit.
Isnt it time for us to start making the rules, if not for us but the people we act for and for the integrity of a robust justice system not just on the surface. If you agree that the time has come to make a stand then rest assured there are many willing to stand shoulder to shoulder with you, from both sides of the profession


  1. Thorough and correct Paul. Thank you

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