TRANSFORMING LEGAL AID
NEXT STEPS CONSULTATION
RESPONSE OF THE NORTHERN CIRCUIT OF THE BAR
The Northern Circuit of the Bar is one of six similar groups which represent barristers, primarily in independent practice, from all disciplines of the law.
Each Circuit has a geographical area, which together cover the whole of England and Wales.
Barristers in independent practice are sole traders. They have not, historically been permitted to practice together in partnerships and are not permitted to be members of a trade union. Barristers normally practice from sets of chambers, in which they share accommodation and the services of clerks and other administrative staff to run their practices, sharing the costs to keep their overheads low. However, the earnings of each individual barrister remain exclusively those of that individual. Barristers chambers are not businesses, but a collection of self-employed traders.
This system of working has been in place for hundreds of years. It provides mutual assistance and support and is a part of the legal education process because students who have obtained a university degree and then succeeded in passing the specialist examinations to become barristers, are then required to undertake pupillage (akin to an apprenticeship) under the supervision of an existing and specially trained barrister. The supervising barrister undertakes the training to act in that capacity voluntarily and at their own expense. They provide the supervision and training to the pupil barrister without payment and in their own time, as part of their professional (and social) life. Barristers chambers that agree to offer such pupillages are required to provide financial support to every pupil, which is paid from the contributions of all of the barristers who belong to the chambers.
Individual barristers do not therefore work in isolation. Their working lives are inextricably linked to those of their colleagues. Any threat to one group of barristers, threatens the viability and way of working of every other barrister.
Most of the work undertaken by barristers is provided by firms of solicitors. Recent changes to the practice rules have begun to allow barristers to offer their services direct to members of the public, but in some areas of law, such direct access is, in practical terms, extremely limited. Criminal law is one such area, because every person charged with a criminal offence has the right to be represented and Legal Aid has for decades been available (now subject to contributions according to their means) to every such individual. There can be doubt that this is the mark of a civilised society and is why, rightly, our criminal justice system is the envy of the world.
The unprecedented attack on the viability of publicly-funded criminal law contained in the proposals for changing criminal legal aid affects barristers of all disciplines because the changes will jeopardise (a) the continuation of the businesses of the solicitors who provide work to criminal barristers; by doing so, (b) the businesses of the individual criminal barristers; which in turn (c) will affect the viability of the chambers system of working; and (d) the ability of barristers’ chambers to provide pupillages for the barristers of the future.
So it is that this Northern Circuit response to the Transforming Legal Aid – Next Steps Consultation is submitted on behalf of all 1348 of the barristers on the Northern Circuit and is not restricted to the barristers who practice in the criminal courts, who are almost 500 in number.
The Northern Circuit of the Bar supports the views expressed in the Response submitted by the Criminal Bar Association. This Response should be read in conjunction with the detailed response submitted on behalf of the Northern Circuit in connection with the previous Consultation.
Whilst no-one denies that savings can and should be made to public expenditure, the targeting of criminal legal aid by the Ministry of Justice and savings of £220 million, which are relatively modest when viewed against the background of government departmental spending, will act so as to have a disproportionate and adverse effect on the criminal justice system.
The criminal justice system has always relied upon and remained as effective as it has, by the professionalism and dedication of those individuals who work within it. The arbitrary restructuring of the criminal justice system set out in this consultation paper, under the veil of cost-cutting, will fundamentally, irrevocably and unnecessarily damage the criminal justice system of this country.
In April 2013, hundreds of barristers from the Northern Circuit met together in Manchester, on a normal working day, to discuss the proposals then contained in the Ministry of Justice Consultation Paper on Transforming Legal Aid. By meeting in that way, the criminal courts of the Northern Circuit could not function: cases were adjourned in advance by some courts to enable the barristers to meet and other cases simply did not go ahead because barristers did not attend court, even though, in some instances, their requests to the judges to be allowed to attend the meeting had been refused. Criminal practitioners were joined by barristers from other disciplines who attended to demonstrate their opposition to the threat to public justice. Criminal law solicitors from the region also met together on the same day. Such a display of unity and strength of feeling is unprecedented and remains undiminished.
This “Next Steps” consultation purports to have taken into account the responses to the earlier consultation and purports to have met the objections by retaining the concept of client choice, which is, as a matter of fact, something enshrined in statute.
It is the view of the Northern Circuit that the apparent concession is more illusory than real.
It is clear that the proposals that came from the discussions between the Secretary of State and representatives of the Law Society do not meet the objections raised by solicitors in criminal practice.
Solicitors’ firms holding a current criminal legal aid contract undertake a combination of “own client” and duty solicitor work. We do not believe that any solicitor’s firm could survive only on “own client” work. The proposed “duty provider” contract is clearly intended to be aimed at large organisations, which can undertake the volume of work over the geographical area envisaged by the reduced number of contracts.
Any solicitor’s firm which is either not in a position to, or is unsuccessful in securing a “duty provider” contract will, effectively, be unable to compete in the criminal legal marketplace and is unlikely to prosper financially. The proposals require the detained person to elect who should represent them “at the first point of contact”. In practical terms, for any person arrested other than by voluntary attendance at the police station, the “first point of contact” will be at the police station following arrest and without sufficient staff to be able to guarantee attendance at any police station anywhere, 24 hours a day, the “own client” contracted solicitor is likely to lose the opportunity to respond to the detained client “at the first point of contact”, whereas the “duty provider” contract holder will be obliged to represent that same detained client if the “own client” solicitor cannot attend.
Once the “duty provider” has been the “first point of contact”, the legal aid regulations do not provide the mechanism for a “consent” transfer of the legal aid representation order to the “own client” solicitor and the court will be bound to refuse such a transfer.
The view of the Northern Circuit, reflecting the views expressed by solicitors with whom we have daily contact, is that the “own client” contract, far from preserving client choice, will, if implemented, see those firms of solicitors who do not bid for or do not succeed in securing a “duty provider” contract, quickly become unviable as businesses.
Perhaps surprisingly, the largest firms of solicitors, who might be thought to be best-placed successfully to bid for “duty provider” contracts do not consider that such contracts would be economically viable unless there were very few such contracts available. In Greater Manchester, the view of one of the largest firms of criminal legal aid solicitors is that more than approximately 10 “duty provider” contracts for the whole area would make the scheme economically unworkable, because the viability of the contract would require a guarantee of a huge volume of clients.
The Ministry of Justice suggest that the proposed criminal legal aid contracts would enable groups of existing firms of solicitors to bid collectively for “duty provider” contracts. We cannot envisage such an arrangement being workable: the collective responsibility, overheads and previous solicitor-client relationships would combine to prevent any such effective arrangement.
The proposed reduction in levels of fees under the legal aid contracts, amounting to 17.5% over 2 years, coupled with the revision of the basis of the litigators’ fee in graduated fee Crown Court cases and the 30% reduction in fees in current and future VHCC cases can only accentuate and accelerate the economic instability which we forecast from the structural changes to the criminal legal aid contracts set out above.
That the proposals represent an intention to manipulate the criminal legal aid legal sector is revealed in the consultation paper itself: “…without any Government intervention, the market will not take any action to consolidate and the best possible way to achieve a sustainable market is through a procurement process that involves an element of competition.” (paragraph 2.29). We believe that there is already a very active competitive market – the number of firms of solicitors holding contacts does not expand the available work, which emanates from the number of defendants arrested for and/or charged with criminal offences. Furthermore, only one solicitor acts for any given defendant at any one time. We therefore do not accept that consolidation of the “market” is an aim which will have any effect on the level of expenditure, except insofar as the administration of the legal aid payments is concerned.
The Minister has recently commented that there are “too many criminal barristers”. We perceive that this is a further wholly unwarranted expression of an intention to manipulate the profession of criminal barristers. The number of barristers practising criminal law has absolutely no bearing on the level of expenditure of public funds on criminal legal aid. As there is only one fee for the advocacy in any case, paid to the Instructed Advocate, defined by the steps in the case and only one Instructed Advocate in any case, the fee paid by the Legal Aid Agency remains the same, even if, at different court hearings in the case, a number of different barristers have, in fact, represented the defendant.
Criminal barristers also operate in direct competition with each other, such competition based on merit and particular expertise. This competition is therefore entirely self-regulating and requires no further manipulation by central Government.
The cuts of 30% to the advocacy fees for existing and future VHCC cases, which the consultation paper and the Minister’s recent discussions with the Circuit Leaders confirm, represent wholly arbitrary, unwarranted and unprecedented changes to the arrangements for the very small number of very high profile cases each year.
By definition, these cases are “Very High Cost Cases” because of their size, length and complexity. On the Ministry’s own figures, these form less than 5% of the criminal legal aid cases each year. The fee regime was devised so that the fees for such cases is always controlled by officers of the Legal Aid Agency, who authorise every single hour of work in advance and pay only if the that work has been properly undertaken. If the work was unnecessary it would not be authorised and paid. The Ministry and the Minister have never acknowledged this basic feature of the VHCC regime – that the Ministry already controls how much work each solicitor and barrister can undertake on the case and the rates paid are those set by the VHCC scheme.
It follows that if the VHCC cases have resulted in significant expenditure, it is because Legal Aid Agency officials have been satisfied that the work was necessary and had been undertaken.
Over 95% of the barristers undertaking criminal legal aid cases across England and Wales have already confirmed to the Criminal Bar Association that if the VHCC fees are reduced by 30%, they will not continue to work on existing cases and will not accept any new VHCC cases. It is the view of the Northern Circuit that such a response is the definitive test of the market: the proposed fees are below any reasonable market rate. We also believe that the solicitors on the VHCC Panel are of a similar view.
The Northern Circuit rejects both Options put forward in the Consultation Paper for the revision of the Advocates’ Graduated Fee Scheme. It is some time since the Bar Council “undeemed” the fees under the Graduated Fee Scheme that then pertained. In other words, the Bar Council has long recognised that the fees paid to barristers for 95% of the criminal cases in England and Wales is not reasonable remuneration for the work done. No barrister is obliged to accept a criminal case based on payment under the legal aid scheme.
That barristers have continued to accept such work is a testament to the dedication, professionalism and goodwill of those practising in the criminal courts. But there is a limit to the tolerance of such professionals.
Fees paid for criminal advocacy in the Crown Court have not increased since 1997. The graduated fee structure was carefully devised to take account of a number of complex factors to produce a fair system of payment.
Since 1997, there have been successive reductions in the level of payment, culminating with the most recent 13.5% phased reduction. The cumulative effect has been to reduce the level of payment under the Graduated Fee Scheme by 40% from the fees paid in 1997. The first incarnation of the current Graduated Fees Scheme was devised after an extensive iterative review of remuneration in criminal cases undertaken by Lord Carter. That review fixed criminal fees to represent appropriate remuneration on a case by case basis. That scheme has been eroded over time, whilst the work involved in the preparation of such cases has grown. We know of no other profession, sector, industry, group or department which has been subjected, by successive governments, to such a steady and savage reduction in the level of payment for public work.
The proposal now is to impose a further significant reduction in those fees. Our own analysis reveals that the effect of both Options will involve first, a further manipulation of the criminal justice system by building in a perverse financial incentive to the advocate to avoid a trial and second, a payment regime which makes the practice of criminal barrister in the Crown Court an uneconomic prospect.
If it is thought that “duty provider” and “own client” contract holders would deploy in-house advocates to undertake Crown Court advocacy, we believe that such a course of action would also be uneconomic. It has recently been acknowledged that there is no economic case for the use of in-house advocates by the Crown Prosecution Service and we are aware of in-house advocates presently employed by firms of solicitors having to face the stark choice of redundancy or significant cuts in salary to retain their employment. The lower fees envisaged by the Consultation Paper will not improve that situation.
Self-employed barristers represent an extensive body of experts, available to be deployed on a case-by-case basis, bearing all their own overheads, funding their own absences through illness, holidays and pensions. Compared with the cost of in-house advocates employed by firms of solicitors, the economic case in favour of the independent Bar is unanswerable.
As with the VHCC cases, the two Options for revised Crown Court Advocacy Fees represent, in the view of the Northern Circuit, levels below that which it is reasonable to expect barristers to conduct Crown Court cases.
We note that Option 2 is not that which was mooted by the Bar Council, but a modified version. The proposal by the Bar Council was a structure designed to deliver administrative savings whilst retaining overall levels of remuneration. Option 2 “banks” those savings but introduces further devastating cuts to the fee levels.
The Northern Circuit welcomes the suggestion that the cash flow of solicitors and barristers might be improved by the introduction of interim payments by the Legal Aid Agency. However, we do not regard this as anything more than an empty promise. The Legal Aid Agency has not been able to process criminal legal aid claims within reasonable timescales since it took over the task in April 2012. One of the justifications for the graduated fee scheme set up in 1997 and then by the Carter reforms was the improvement to the speed of payment; it was intended that payment would be made within 10 days of the bill being submitted. Following a complete, unannounced and protracted cessation of payments to barristers in April 2012, the payment delay remains one of months rather than days. It is this significant backlog of payments that has led to the cash flow problems acknowledged by the Ministry. It is obvious that additional staff would be required by the Legal Aid Agency to administer and process interim payments and it is the view of the Northern Circuit that if the Ministry is prepared to provide such additional staff, they would be better employed in improving the existing fee claims process, rather than providing a separate interim payment regime. We have no confidence that a satisfactory system of interim payments can be achieved.
Our comments and objections to the original proposals set out in our response to the earlier consultation remain current and we therefore attach below to this response a copy of our earlier response.
THE NORTHERN CIRCUIT OF THE BAR
30th October 2013