Monday, 24 August 2015

The Tuesday Truth

The Story so Far
by Zoe Gascoyne

In April 2013 the then Lord Chancellor, Chris Grayling, announced plans to cut criminal legal aid by 17.5%. He recognised that the profession could not sustain such a cut and so he sought to enforce market consolidation. His first plan was to introduce PCT and remove client choice.  The profession reacted angrily and 16,000 consultation responses were submitted. 

 A second consultation was commenced and notwithstanding the opposition the government announced Two Tier, forced consolidation which would see most firms put out of business.  The CLSA and LCCSA embarked upon not one but two Judicial Reviews in opposition to Two Tier.

On the 10th June 2015 the Lord Chancellor announced that he was to proceed with a further 8.75% cut to fees before any consolidation.  The same statutory instrument introducing the cut contains further cuts to be implemented in January 2016. The CLSA and LCCSA made immediate requests to meet with the Lord Chancellor to discuss their concerns. These requests were not responded to and so solicitors across the country took an unprecedented stand by refusing to work under the new rates. Merseyside were the first to take action publicly declaring that they wanted engagement with the Lord Chancellor and the MoJ. Many areas followed suit.

On the 23rd July, after just over three weeks of action and seven letters from the CLSA and LCCSA, the Lord Chancellor met with the committees. Discussions were held in relation to the cuts and two tier and the associations made their position and opposition to both very clear.

A paper was submitted to the MoJ for consideration and a second meeting to discuss various matters was held on the 3rd August 2015. After a ninety minute meeting it was agreed that the associations would provide the MoJ with examples of savings that could be made which might in turn negate the need to cut to legal aid rates for a three month period.

The Lord Chancellor has made it perfectly clear what he is and isn't willing to consider in the initial stages of negotiations. The Lord Chancellor and the MoJ state that they are committed to two tier unless an alternative could be produced to be implemented within the time scale. They maintain that any suspension of the cut would be for a period of three months if the savings could be made elsewhere.  The associations have made their ongoing position very clear to the MoJ during every meeting. On behalf of the profession we continue to seek a permanent suspension of the cut and we continue to challenge Two Tier.  We must however acknowledge what the Lord Chancellor has set out and we view this as being the start of longer term engagement.

On the 11th August 2015 a third meeting took place.  The meeting was to discuss the four proposals for savings with the MoJ and LAA.  An assurance had already been given that any proposals made would not simply be banked. The proposals were well received and it was acknowledged that they were practical and could potentially amount to savings within the system to make up the short fall for suspending the cut. Since that meeting there has been telephone communication this week on two separate occasions between the associations and the MoJ. It is clear that the MoJ are taking the suggestions seriously and have embarked upon some number crunching before any final decisions can be made.

The associations have made considered decisions at every stage. There have been assurances made by the MoJ that since the last meeting there has been no unnecessary delay. The proposals made were serious and worthy of consideration. The calculations will take a little time given the information required across the board.  In the meantime a decision has been taken that the action should be suspended. This decision has been made as a consequence of a number of factors including information made available to those negotiating. We take the views of the profession seriously and we acknowledge the difficult financial constraints that the action was imposing upon an already fragile profession. We also recognise that there are members of the profession who have sought to gain whilst action is being taken.

At this stage we make it perfectly clear that this is far from over. The negotiations are on going and we expect a response within the next two weeks. Once that response has been received we will be in a position to move forwards in one way or another. We take the view that this is a process that needs to be dealt with in stages.

In the meantime we have embarked upon a fresh start with the new leadership of the CBA and we continue with our fight to ensure a sustainable criminal justice system for those who need it and for the profession themselves.

The CLSA and LCCSA consist entirely of criminal legal aid practitioners.  There will be no deals and no capitulation.  We understand and acknowledge the frustrations of many but we ask for an understanding that we cannot broadcast every detail across social media. There has been a solid fight by the associations against two tier and the cuts for two years, our opposition remains just as strong.  There is currently a bid withdrawal survey organised by the LCCSA which remains open until the 28th August. We understand that there are some who call for a continuation of the action however the suspension allows for a period of reflection.  To allow a response to the negotiations this far and to consider what steps may be required in the future.  There are times when action is necessary and there are times when negotiation should be allowed to take place with clean hands.

Over the last two years the CLSA and LCCSA have organised numerous rallies and demonstrations. We have consulted MP's and spoken to the press. We have written open letters. We have raised funds for legal proceedings. We have attended meetings and organised meetings. We have taken legal advice and we have united a previously fragmented profession.  We have provided alternatives and we are negotiating. We have fought long and hard for two years and we remain staunch in our opposition. We have not given up. The were many who said that the action would never happen and they were wrong. There are many saying that we have waved the white flag and they too are wrong.





Monday, 17 August 2015

The Tuesday Truth

Magistrates are in revolt over what I will refer to in this blog as “Grayling’s Parting Gift” the Criminal Courts Charge. Over 20 have resigned in protest. The charges vary from the Magistrates’ Court and Crown Court, they are mandatory and not means tested.

It is, of course, likely to provide a perverse incentive to some innocent defendants to plead guilty because of the risk of the hugely disproportionate court charge if they are wrongly convicted.   These increases are consistent with a pattern of massive court fee increases in the civil courts including employment tribunals.

If you plead guilty to say a burglary in the Crown Court the court charge is £900.  Interestingly enough the legal aid fee payable to the litigator and advocate in such a case is likely to be less, probably in the region of approximately £700 + VAT, the litigator’s element less than £200.

If the defendant is in custody it is likely that for the litigator’s £200 they will have represented the defendant in the Magistrates Court, possibly prepared a Crown Court bail application, visited the defendant in custody on at least two occasions, and liaised with counsel and the Crown, all for substantially less than the defendant will have to pay in relation to an unmeritorious mandatory non-means tested charge.  As defence lawyers we, of course, welcome the outcry from Magistrates over the court charge, but quite frankly wish that they could also extend their protest to the equally appalling legal aid cuts and reforms.   After all they as much as anyone else witness the deterioration in the administration of justice every day before them and it is perhaps time that all stakeholders in this creaking justice system had the courage to stand up and say “no more”.

This isn’t about politics, it isn’t about the judiciary becoming involved in a political debate, it is about the delivery of a fair and robust justice system.  Every Judge and Magistrate up and down the country is charged with this duty and indeed has sworn on oath that they will protect the rule of law in their courtroom, yet as the system unravels their voice remains silent.

Criminal legal aid lawyers, solicitors and barristers have taken protest action since 1 July 2015. There has been engagement by the LCCSA and CLSA with the leadership of the criminal Bar and the Big Firm group.   The two-tier contract system due to be launched in January represents a huge threat to both solicitors and barristers.   Fees across the board for all the work solicitors do,  in the police stations, Magistrates’ Court and Crown Court, have been substantially slashed following the introduction of these new contracts.  Not by 8.75%, not by 17 ½ %, but by much more. Further swingeing cuts follow in January to the LGF scheme and before that in October fixed fees for VHCC cases will be introduced.

When will people wake up and start realising what is coming?   For a guilty plea in the Crown Court to an offence of burglary, the overall fee reduction will be 52%.   Many of the reductions to these fees are over 20 and 30%, with greater percentage reductions on not guilty trials.    If you plead not guilty to a serious sexual offence and the page count is in the region of 200 pages, the fee for preparing the trial which will inevitably be defence led and will involve taking very detailed instructions on a complainant’s allegations, finding witnesses and pursuing unused material relating to events that took place many years ago will be £917.17, a reduction of 38.22%. 

Examples such as the above have been rehearsed time and time again, but still many people do not get it.  The Government’s attitude is that duty contracts will deliver economies of scale, so that firms can afford to prepare cases for the fees that will be on  offer from January 2016. Can this be right? Can firms survive on mythical swings and roundabouts? What about quality legal advice?  What about dealing with the vulnerable?  What about a profession where liberty and reputation are the key words being treated appropriately with respect?  What about a Lord Chancellor who acknowledges the contribution of solicitors?

Again, all of the above has been rehearsed time and time again.  The Independent Bar stand to lose a great deal by two-tier.  Advocates’ fees remain the same.   To try to rebalance the books firms of solicitors will need to cover more Higher Court work in-house either by using Higher Court advocates or recruiting barristers from the Independent Bar.

The leadership of the Bar say if you really want to kill off two-tier then all firms should withdraw their bids.  However, although the LCCSA has launched such a bid withdrawal survey and the CLSA are considering their position this is not the only answer in town.  

It is an appalling analogy so forgive me, but if you are dying you will do everything you possibly can to put off the end, to buy yourself some more time for a little while longer, and many firms have bid for duty contracts because it buys them more time, notwithstanding the economics, notwithstanding the absurdity of the scheme, notwithstanding the potential fallout, they know that two or three firms in their area, or just outside their area have bid so they bid.   They have staff to pay and many, many other expenses.

The CLSA and the LCCSA hope that the last few weeks engagement with the MOJ  have demonstrated to the MOJ that if we work together in an  environment of trust then we can assist the MOJ in finding greater savings and efficiencies which do not require cuts. 

We believe that many of the ideas we have put forward will lead to savings and we are fully supportive of implementing both the recommendations in the Leveson review and the Jeffrey’s report.  There needs to be quality representation from the police station through to the Crown Court.  There needs to be far greater strategising between the leadership of the Bar and the solicitors in terms of the way forward. The survey on bid withdrawal may not be enough, we need to work with the bar in persuading the MOJ that Two Tier is a disaster for everyone. We need to consider what else that solicitors and the bar can do to oppose this model.  Arguments must be put forward concerning access to justice and the diversity of both sides of the profession so that criminal law does not become the preserve of bean counters or those whose families can subsidise their career choice

The bid survey is an excellent initiative which responds to the concerns of many members of the London Criminal Courts Solicitors Association, that there is no way that this system can work particularly given the shocking level of cuts which may all be operating by the time of the new contract.  Those members who have called for such a survey need to respond to it, and promote it.

  Recent meetings between us and the CBA leadership have been positive and we look forward to working with the new leadership team of Mark Fenhalls QC and Francis FitzGibbon QC and the junior bar of course in taking these matters forward together.

The exchanges with the Ministry of Justice and indeed the Lord Chancellor have been constructive.  This week we will find out how constructive.   Regardless of what, if anything, we are offered there needs to be greater acknowledgement on all sides (particularly the MOJ)   that sitting round a table is a far better way forward.

However, assuming that the Lord Chancellor does not want the non relationship with solicitors his predecessor had, these are a crucial few days for the MOJ.  Suggestions by solicitors have been made in good faith.   Now it is time to see whether there is any real give and take.  

It may be that the action can be temporarily suspended to acknowledge whatever offer is made provided there is ongoing engagement

It is definite that we can find the savings that the Ministry of Justice need as opposed to cuts, but it is time for them to simply decide whether they want to work with us or work against us, and ultimately if it’s with us Two Tier  must go.