I have reproduced some of my responses here to the consultation paper. I have not produced everything because it turned out to be quite a long document! But I have included those responses where even a calmer read through could not placate me and the responses became more personal to me. I confess these are the less thought out and evidence based sections but it made me feel good to get it off my chest…..
1) Restricting the scope of legal aid for prison law
Q1. Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria? Please give reasons.
No. The right of the citizen, even if a prisoner, to challenge the decisions of the state is critical in a proper system of checks and balances. The prisoner is the least likely member of society to have the resources to launch such matters privately funded. There should be a clear merits test but not the restrictions suggested in the consultation document. This is simply a headline grabbing attack on a section of society that lacks public sympathy. And as a barrister I know how that feels.
3) Introducing a residence test
Q4. Do you agree with the proposed approach for limiting legal aid to those with a strong connection with the UK? Please give reasons.
Again, as a feature of a free and democratic society, is it not right that the state provide a mechanism whereby the actions of the government can be tested in the courts by foreign nationals where the actions of the government may be unlawful? When this country enters the theatre of war in places like Afghanistan should those affected by our actions have at least some recourse to the UK courts where appropriate? Should we really expect that an Afghan farmer unlawfully detained by the armed forces should have no recourse to justice unless he can pay?
This is just a headline grabbing “we are hard on immigrants” stance taken to win back voters from UKIP. That it finds its way in to a document about reforming Legal Aid demonstrates the political use that Legal Aid is being put to and the things that are being brought in under the disguise of austerity. As a nation we are better than this.
Chapter Four: Introducing Competition in the Criminal Legal Aid Market
Scope of the new contract
Q7. Do you agree with the proposed scope of criminal legal aid services to be competed? Please give reasons.
No. PCT is a disaster for the criminal justice system. If implemented it will be amongst the worst decisions made by a government in modern times. This consultation should have as its first question in this section something which allows for a debate about the proposal and not just questions designed around the model. The Lord Chancellor has repeatedly said he would listen to alternatives to PCT but where is the opportunity for me to do this within the body of this consultation? The Minster and the officials at the roadshows ask us to come up with alternatives but where is the question in this consultation that asks us to do that? How am I, as an individual, meant to come up with costed proposals designed to save money? I have plenty of suggestions such as telephone hearings, efficiencies in the use of court time, changes to legislation such as Custody Time Limits but in the eight weeks afforded to me how am I meant to present those in this document which does not even ask me a question designed to get such an answer?
Q8. Do you agree that, given the need to deliver further savings, a 17.5% reduction in the rates payable for those classes of work not determined by the price competition is reasonable? Please give reasons.
I do not believe the need to deliver further savings. If the nation are “in it together” in austere times the legal profession was the first over the top.
iii) Geographical areas for the procurement and delivery of services
Q10. Do you agree with the proposal under the competition model that with the exception of London, Warwickshire/West Mercia and Avon and Somerset /Gloucestershire, procurement areas should be set by the current criminal justice system areas? Please give reasons.
Geography is one of the waiting disasters of PCT. You will create vast swathes of the country to be covered by an entity that will have one small central office and a minimum of staff. Americans call them Lincoln Lawyers. I call them rubbish lawyers.
Q11. Do you agree with the proposal under the competition model to join the following criminal justice system areas: Warwickshire with West Mercia; and Gloucestershire with Avon and Somerset, to form two new procurement areas? Please give reasons.
No. Because PCT is a very very bad idea.
Q12. Do you agree with the proposal under the competition model that London should be divided into three procurement areas, aligned with the area boundaries used by the Crown Prosecution Service? Please give reasons.
You may spot a theme here. PCT is a bad idea.
Q13. Do you agree with the proposal under the competition model that work tendered should be exclusively available to those who have won competitively tendered contracts within the applicable procurement areas? Please give reasons.
Have I mentioned PCT is a very bad idea? Clearly you have to guarantee market share to make it workable in terms of your model. But it is that guarantee that also guarantees laziness and ineptitude.
iv) Number of contracts
Q14. Do you agree with the proposal under the competition model to vary the number of contracts in each procurement area? Please give reasons.
PCT. Bad. Idea. However, clearly different sized areas would need a different number of providers based on need.
Q15. Do you agree with the factors that we propose to take into consideration and are there any other factors that should to be taken into consideration in determining the appropriate number of contracts in each procurement area under the competition model? Please give reasons.
PCT is a recipe for injustice. As ideas go I would say this is a bad one.
vi) Contract value
Q16. Do you agree with the proposal under the competition model that work would be shared equally between providers in each procurement area? Please give reasons.
You are not slicing a pie or dividing pallets of goods. You are dealing with people’s lives. The liberty of the subject is not a commodity to be auctioned off. Anyone proposing that would be ventilating something which can only be described as…..a bad idea.
vii) Client choice
Q17. Do you agree with the proposal under the competition model that clients would generally have no choice in the representative allocated to them at the outset? Please give reasons.
The limitation on client choice and the removal of a significant proportion of the supply base could jeopardise parts of the justice system. The benefits of continuation, reputation and confidence of representation, e.g. for vulnerable or black and minority ethnic clients, may be lost and some rural areas could lose supply altogether – these are not my views but those of Lord Carter after his detailed iterative review of procurement. Listen to him. Please.
Q19. Do you agree with the proposal under the competition model that for clients who cannot be represented by one of the contracted providers in the procurement area (for a reason agreed by the Legal Aid Agency or the Court), the client should be allocated to the next available nearest provider in a different procurement area? Please give reasons.
I risk repeating myself here but it is worth saying until you understand. Choice is part of the civil liberties that we deserve. Choice is also seen as a driver for quality in every other area of public funded welfare provision. Education? Choose a school based on tables. NHS? Choose your doctor or service provider. Locked up for a crime you did not commit? Just have the cheapest provider who is next off the conveyor belt.
Let me explain the cab rank rule to you. It is meant to ensure clients get representation no matter how heinous their crime. You will manage to invert that so that the accused has to take the first jalopy on the rank, notwithstanding it is a death trap.
Q20. Do you agree with the proposal under the competition model that clients would be required to stay with their allocated provider for the duration of the case, subject to exceptional circumstances? Please give reasons.
The reality is they already are. What is wrong is the fact that you lash them to an unknown, low-rent lawyer in the first place.
Q21. Do you agree with the following proposed remuneration mechanism under the competition model? Please give reasons.
Block payment for all police station attendance work per provider per procurement area based on the historical volume in area and the bid price
Fixed fee per provider per procurement area based on their bid price for magistrates’ court representation
Fixed fee per provider per procurement area based on their bid price for Crown Court litigation (for cases where the pages of prosecution evidence does not exceed 500)
Current graduated fee scheme for Crown Court litigation (for cases where the pages of prosecution evidence exceed 500 only) but at discounted rates as proposed by each provider in the procurement area
Now we get to the real reason. You want to pile them high and sell them cheap. How can you cheapen justice? You appreciate you cannot cut any more from the litigation fees without guaranteeing market share. You realise it is unsustainable. Should you not look to try and make your savings elsewhere rather than cutting a sector that has already been pared to the bone? The only way you can do this is by shredding up years of quality service in this area and selling it off to the lowest bidder with a consequential loss of quality. Listen to the people at the coalface. You cannot and should not do this. This whole consultation introduces a race to the bottom.
x) Procurement process
Q23. Are there any other factors to be taken into consideration in designing the technical criteria for the Pre Qualification Questionnaire stage of the tendering process under the competition model? Please give reasons.
Quality. I am going to mention it here because you do not seem to have any question designed aroundw the standards that will follow PCT and how you intend to maintain them. I appreciate that this is because you realise that PCT will lower quality. I have heard much of how the LC is going to work with the Law Society and the Bar Council to design a quality assurance scheme. When? Where is it? Where is the quality assurance scheme for litigators that has been designed with PCT in mind? You have put the cart before the horse but even the cart manages to smell agricultural.
You see, Lord Carter said this about BVT
“Recommendation 3.1: The Legal Services Commission should begin from July 2006 a national roll-out of peer review assessment for all firms seeking a place in the new market so that the introduction of best value tendering can take place from April 2009 onwards. The Legal Services Commission should adopt four criteria to plan the roll-out of peer review:
• greatest quality impact for clients;
• greatest opportunity to restructure the local market;
• ensure a level playing field for all firms until best value tendering takes place; and
assess the impact on the justice system.”
I would venture to suggest that the same applies to PCT. In fact under the proposed model the risk to quality is even greater as the only driver is cost. So Lord Carter envisaged a quality assurance scheme established 2 and 1/2 years before the tender process so the scheme could be refined and the bidders could be scrutinised for quality. Your process has not even got such a scheme in place yet. The promises about quality are based on nothing more than faint hopes and aspirations, so much so that your promises are empty and meaningless. You are driving the criminal justice system off the edge of the cliff and want the public to believe it is all going to be alright.
Q26. Do you agree with the proposals to amend the Advocates’ Graduated Fee Scheme to:
introduce a single harmonised basic fee, payable in all cases (other than those that attract a fixed fee), based on the current basic fee for a cracked trial;
reduce the initial daily attendance fee for trials by between approximately 20 and 30%; and
taper rates so that a decreased fee would be payable for every additional day of trial?
Please give reasons.
No. I am a criminal advocate. My income has halved. I have already had cuts which I can scarcely withstand. And yet you want to come again. There is only one result of this. People of experience and skill will leave the profession. You recognise that you cannot unduly limit bankers’ pay and bonuses because of the potential for an exodus of talent from the sector or the country. It may well be that MP’s salaries are increased due to a recommendation that you will not attract good candidates at the current level of remuneration. Why can you not see the risk in criminal advocacy?
If you pay peanuts you get monkeys.
The daily rates are already poor. It is laughable to reduce them across the board. It is insulting to reduce them one iota because of the length of the trial. If I ask for time in a case it is because it is in the interests of justice to do so. Not so I can get a refresher. If it takes a while to cross examine a vulnerable witness it is because that is the best approach to take for all involved. If I tarry, the Judge will chastise me. If a trial in a violent disorder to which there are twenty eye witnesses and six defendants takes three weeks that is not my fault, it is the length that the trial has to take. In fact I shorten trials by making sensible concessions and formal admissions on a daily basis. I DO NOT NEED PENALISING IN FEES! The only thing it will do is encourage the less experienced and less well trained to cut corners. No one spins out a case and you have no evidence that we do. This is just about saving money. Attending court for £100 or less before expenses is simply not viable.
Introduce theses fee changes and I will be part of the talent drain away from the criminal bar.
2) Reducing litigator and advocate fees in Very High Cost Cases (Crime)
Q27. Do you agree that Very High Cost Case (Crime) fees should be reduced by 30%? Please give reasons.
They are already ludicrously low. I can’t get a plumber or a mechanic to work at these rates. I do not undervalue their experience and expertise. This consultation seriously undervalues mine.
Q28. Do you agree that the reduction should be applied to future work under current contracts as well as future contracts? Please give reasons.
No. That offends some pretty basic principles of contract law. If you ask a lawyer, a commercial lawyer, they will tell you that and then charge you more per hour than you will pay a Silk in a terrorism trial. You have value for money right now with the criminal bar. You want blood.
Chapter Seven: Expert Fees in Civil, Family, and Criminal Proceedings
Q33. Do you agree with the proposal that fees paid to experts should be reduced by 20%? Please give reasons.
You will not be surprised to hear that I say no. The quality of experts will diminish in the same way everything will if you underfund the provision of experts. There should be proper control of these fees, it is difficult to understand why a psychiatrist gets paid more in the majority of the cases than the advocate who prepares and presents the case. Oh no, hang on, I do understand it. It is because we, the advocates, are already paid considerably less than other professionals…..
As a postscript to this post I would like to say that I have read many of the responses that my colleagues have produced. I am proud to say that they are all brilliant pieces of advocacy and I am more than ever convinced of the power of the opposition to this ludicrous proposal. Where I have ranted, Mark George was precise. Where I have prattled on, Tim Forte was coruscating. Where I have taken, broad swipes,Tony Cross was surgical. Where I have lost my cool, Guy Gozem has espoused reason.The list could go on. Hundreds of responses were delivered from the Northern Circuit in person to the MOJ by Lisi Ke and Sarah Griffin. Dozens more (such as my own) went by email.
If anyone suggests this is self interest then direct them to the 50shadesofaffray blog here.
If you haven’t done so already sign the e-petition here.