We’re All Doomed! (Or are we?)

I have been asked my Ian West to host this guest blog. I am always happy to host any relevant piece on Legal Aid and associated issues.

We’re All Doomed! (Or are we?)

The Ministry of Justice (MoJ) announced this week its plans to press ahead with two-tier legal aid contracts. There will be no limit on ‘own client’ contracts, but duty contracts will be limited to 527 (instead of 525) nationwide. There are presently about 1,600 firms with general criminal contracts, so more than two thirds of firms will lose access to new duty clients. In London, particularly, where duty clients comprise the majority of firms’ instructions, the new contracts will mean the end of the line altogether. In the provinces, some firms that do not succeed in winning a duty contract may try to soldier on with own client work, but that will eventually dry up, and they too will be forced to abandon criminal work. There will be advice deserts, and the quality of the advice and representation offered by contract winners will inevitably decline as they seek to make a profit from increasingly tighter margins. There will be more miscarriages of justice that the appeal court has to sort out.

For the Bar, the prospects are no better. The avowed aim of the MoJ is to encourage mergers of firms, to enable back office costs to be spread more thinly across a larger caseload. In practice, what this means is that duty contract winners, confident of that larger caseload, will look to maximise profits by claiming not just the reduced Litigators’ Graduated Fee, but the (so far, at least) uncut Advocates Graduated Fee. They will soon work out their higher court advocacy needs, and will service it by employing cheap, newly qualified, barristers and solicitor advocates, proudly clutching their new, shiny QASA badges. Within a couple of years (if that) the independent criminal Bar will have shrunk to vanishing point, surviving on prosecution work (for as long as the CPS doesn’t follow the defence model) and the odd defence return or difficult client that the in-house advocates don’t fancy.

Of course, the MoJ will not suffer for long having to pay two fees into what is, effectively, a one-stop shop. At the first renewal of the duty contracts, what will be offered are ‘one case, one fee’ (OCOF) contracts. With the end of the ring-fenced advocacy fee, such of the independent Bar that survives even that long will truly be at the mercy of the purse-holding mega-firms, and will surely die.

It is not an appealing prospect for either the majority of solicitors, or for barristers, or, many think, for the public either. But is it inevitable? In my humble opinion, it is not. There are things that both professions, working together can do to delay, or even derail, the juggernaut.

The problem for solicitors is that there a lot of criminal solicitors, and the criminal defence market is highly competitive. There are a few firms who will see the new scheme as an opportunity to substantially increase market share, albeit on lower margins, and to ‘clean up’. Everyone is looking at their neighbour and thinking ‘If I don’t bid for one of these contracts, the other guy will, and then I’ll be dead’. This is the classic ‘divide and rule’ tactic in operation. It doesn’t need to be this way. There are two things the solicitors’ profession, through the LCCSA and CLSA, but also SAHCA, can do.

First, those who fear that they will not get a contract, or would not be able to make it pay if they did, must realise that they are in the overwhelming majority, and recognise their collective strength. There are few firms who could presently service a new duty contract with present staff and premises. They must refuse to apply for a contract. If all firms in that position did that, there would not be enough bidders even to fill the limited slots presently on offer. If that happened, the contract winners would find it even more difficult to service the contract they bid for, and there would be chaos. At the very least, the bidding process would have to be delayed, or implementation put back while the successful bidders attempted to upscale even more quickly than the present, unrealistic, timetable envisages.

The second thing that solicitors can do is to engage in guerrilla warfare with the scab firms, using the tool of their ‘own client’ contracts. This is a battle most easily fought in the provinces, where the ‘own client’ share is greatest, but it can be adapted nationwide. What is the definition of an ‘own client’? It is simply a person who knows which solicitor s/he wants, as opposed to one who does not. Let us educate arrestees to ask for a particular solicitor. The arrestee is asked by the custody sergeant who s/he wants. Why should there not be, on the wall of every custody suite, or the wall of every cell, a list of all of the firms who have an ‘own client’ criminal contract in the area? What about ‘own client’ solicitor firms sharing the cost of employing a person to stand in police stations, introducing new clients on a rota? In short, solicitors need to up their marketing game in order to maximise their ‘own clients’ to the point that they can survive without a duty contract. And they can make life very difficult for the scab firms – withdrawing the co-operation that makes the magistrates’ court run smoothly. It’s time for the gloves to come off.

And the Bar can help. First of all, by refusing instructions from scab firms. The cab rank rule will have to go, but that is a small price to pay in what is a battle for survival. In the first few months, until they had recruited their in-house teams, the new contract holders would need the independent Bar. The Bar need not collaborate in its own demise. Further, the CBA is already looking at lobbying for a change to the Criminal Procedure Rules to require the judge at a preliminary hearing to enquire directly of the defendant whether he has had it explained to him that he may have a barrister in independent practice. The solicitors’ representative bodies need to lobby for a change to their own regulatory codes to require a solicitor to advise a client of the right to instruct a barrister.

But the Bar has an even greater weapon in its armoury to defeat the duty contracts scheme. It is called Quality Assurance (QA). No, not the dismal QASA scheme, which, as the CBA has said, is a sham scheme, intended to fool the public by giving a cloak of respectability to cheap, bad advocates, but a real quality assurance scheme, without plea-only advocates (POAs) and which demands high standards of advocacy, rather than rubber-stamping poor ones. Getting rid of POAs is central to this. Firms with in-house POAs are able to cherry pick the low-hanging fruit – the ‘easy’ guilty pleas. If a robust QA scheme were put in place, the mega-firms would not be able to employ cheap, newly-qualified advocates in order to claim the AGFS fee to make up for the miserly LGFS fee. They would have either to recruit from the independent Bar properly-qualified advocates, at the market rate for the grade of case being undertaken, or they would have to continue to outsource work to the independent Bar.

Accordingly, so far as the Bar is concerned, the first step to saving both the solicitors’ profession, and itself, is to defeat the sham QASA scheme, and to put in its place a scheme that actually ‘does what it says on the tin’. The Bar must refuse to sign up to QASA when the ‘window’ opens, and the CBA and the Bar Council (BC) must start to build a robust QA scheme to replace it. That work has already commenced – I myself chaired a BC group which proposed such a scheme. That need taking off the shelf where it was ‘parked’ and given a new lease of life.

The issue of POAs at one time was a bone of contention between the professions. It caused endless arguments in the Joint Advocacy Group (JAG) which hammered out the QASA scheme. I have argued before that the concept of an advocate who has a financial interest in his client’s plea is anathema to everything the Legal Services Act 2007 is supposed to be about, and I do not propose to repeat the arguments here. The position now, in 2014, however, is that the professions need to ‘bury the hatchet’ over POAs, and realise that removing them from their central position in the QASA scheme is essential in defeating duty contracts, OCOF and the end of life as we know it. Better that 1,600 firms survive without having to cherry pick the guilty pleas, than both professions are decimated so that a few firms may do so.

To conclude, it is not inevitable that Mr Grayling’s vision of the future will come to pass. There are things we can do to delay, deflect and defeat it. We may not succeed, but we MUST try. The alternative is unthinkable.

Ian West
Fountain Chambers

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