‘This is a derisory document’. Thus, Professor Roger Smith described the MoJ’s paper on Transforming Legal Aid, when he gave evidence to the Select Committee for Justice last Tuesday. The most senior members of the legal profession gave evidence about the potential impact of the proposals. The President of the Law Society, and the chairs of the Bar Council, Criminal Bar Association, and Criminal Law Solicitors Association all agreed that, if the Minister has his way, the criminal justice system will be irreparably harmed. The MoJ plans to introduce these changes by secondary legislation, although more than 90,000 signatories to an e-petition (Save UK Justice) have now called for a full debate in Parliament.
An unholy deal
The central proposal affecting the criminal justice system, is that suspects who qualify for legal aid (under a new financial test) will be denied access to a solicitor of choice. The state will allocate a lawyer to them, on a random basis, according to date of birth, or first letter of their surname. The suspect will not be permitted to choose a solicitor already known to him, or recommended by reason of their personal skills, or expert knowledge. He will be obliged to retain the allocated lawyer for the whole case.
The MoJ intends to force the closure of 1,200 firms of solicitors, and to limit the provision of criminal advice and representation to 400 ‘providers’ across the country. Each successful bidder will be guaranteed a share of the work in their geographical area. The contracts will be given to those who bid to do it at the lowest price, with a starting point at 17.5% below existing pay rates. To Professor Smith, this represented ‘an unholy deal between Government and big business to do the work at lowest cost’. The MoJ has devised the scheme to encourage large corporations to enter the market, despite their lack of relevant experience or expertise. Those expected to enter the bidding process include G4S and Eddie Stobart.
The Committee was told that depriving clients of the freedom to choose their lawyer, will undermine the trust that exists between a suspect and his solicitor. It heard that if the ‘primary relationship’ is properly established, the client will be more likely to give proper instructions, to trust the advice given, to make admissions, and enter a guilty plea where appropriate, or if he denies the charge, to nonetheless co-operate in the trial process. Without that trust, it is expected that more defendants will complain about, or dismiss their allocated lawyers, refuse to co-operate in the system, conduct their cases without representation, and lodge more appeals. So, the witnesses warned, the intended short-term savings will be far outweighed by the unintended long-term costs.
Grave concern was expressed that defendants may be persuaded to plead guilty for the wrong reason, because the proposals introduce a financial incentive for a lawyer to do less work for his client. The MoJ intends to pay the lawyer a ‘flat rate fee’ for the preparation of the case, regardless of the time spent with the client, or examining unused documents held by the police, or pursuing enquiries of potential witnesses, or in research of complex technical issues.
At present, every criminal lawyer has to not only abide by his professional code of conduct, but also be able to justify his advice and the quality of his work to his client. So it is that the solicitor or barrister makes and retains his reputation, in competition with his rivals. Without the four fundamentals of choice, trust, reputation and competition all in place, the quality of work undertaken for the client will inevitably suffer.
Corporations have to maximise their profits for shareholders, so it can be expected that the new ‘providers’ in the system will employ inexperienced staff, at the lowest cost possible, and pressurise them to achieve the highest income in the shortest time. They will want to increase their share of Crown Court advocacy, regardless of aptitude. Only the least remunerative and most time-consuming work will be farmed out to agents, or to the junior Bar.
The Committee was told in clear terms that the proposals spell disaster for the profession. The small firms in inner cities or remote areas will be unable to compete for contracts, and will close. There will be no place for the BME lawyers who serve their local communities; nor the specialists who have built their reputation in fraud or terrorism cases; nor those with the special skills to represent the profoundly deaf, or the vulnerable, or those with mental health problems.
The Committee will call upon the Secretary of State to put his case on 3rd July.
Author: Michael Fitton QC
Michael is head of Albion Chambers and a door-tenant at Walnut house in Exeter. A specialist in criminal law, he undertakes prosecution and defence work across the Western Circuit, and beyond. He has particular interest in cases involving complex forensic issues, ‘gross negligence’ manslaughter, and psychiatric issues relating to witnesses and defendants.