Factchecking the criminal legal aid dispute

Published: 28th Jul 2015

"We're naturally a conservative profession", says the man in a clown costume.

"But if we don't do something now, there won't be a profession".

Colin Monehen is a criminal lawyer, one of a couple of hundred gathered outside Westminster Magistrates' Court on a sunny July morning. His get-up is a dig at the alleged clownishness of the Lord Chancellor and Secretary of State for Justice, Michael Gove, who recently took over responsibility for a long-running dispute about legal aid.

This is about providing legal advice and representation to people who need it but may not be able to afford it. Reductions in the availability of legal aid in civil disputes (such as family law) under the coalition have bedded in, but lawyers are holding out against the government's cost-saving changes to the scheme for criminal cases in England and Wales.

The Westminster protest is a mixture of the well-heeled and the well-practiced. One besuited lawyer ribs another for arriving with a cappuccino in hand; nearby, T-shirted activists with an air of experience unfurl banners and copies of the Socialist Worker.

Last year, almost 1.2 million people were tried in a Magistrates' Court. A few of those due at Westminster this morning loiter at the protest before heading in, chatting to the lawyers.

"What I got told is, if you earn over 12 grand a year, you don't get legal aid at all", says one defendant.

It's a bit more complicated than that; allowances are made for people with children, for example. He's right that as a single person with no kids, you can be totally sure of legal aid only if you earn £12,475 or less. With more than £22,325, you'd have to pay your own way—at least in the Magistrates' Court. Anyone earning an amount in between faces a more complex calculation of their disposable income.

The upshot is there were around 350,000 grants of legal aid to people appearing before the magistrates last year.

Others apart from Colin have come to the protest in costume, but their gowns and wigs are barristers' attire; some have adorned them with "Gove must Go" stickers.

Paul Harris has no wig, but several hats. As well as a solicitor with a direct interest in the dispute, he's a past president of a London criminal lawyers' group, and member of the campaign group Justice Alliance.

He says that "cuts are so substantial that they imperil proper representation of those under investigation and prosecution by the state".

Reductions in the fees given to solicitors to provide legal aid are at the heart of this dispute. Lawyers argue that with the rates now on offer, many firms are no longer a going concern, and will struggle to attract talented solicitors to work in the criminal field.

"If you make 15% cuts … the quality is just going to fall through the floor", says Matt Foot, another organiser.

His figure is about right. Solicitors' fees for criminal legal aid work have been reduced by 17.5%, in two phases. The second round of cuts kicked in on 1 July—prompting solicitors to take the industrial action that's continued all month.

They're refusing to represent new legal aid clients, while still honouring their obligation to provide a back-up "duty" service for suspects or defendants with no lawyer. The participants apply various labels—"collective action", "direct action", "boycott"—to what David Allen Green, a lawyer and blogger critical of the Ministry of Justice (MoJ), describes as effectively a strike.

But it's hit the already precarious finances of criminal firms hard. So, from Monday, it became a "sustainable" strike, targeted at the Crown Courts where more serious offences are tried.

Solicitors aren't used to strikes. Few at the Westminster rally burn with revolutionary enthusiasm. A chant of "no ifs, no buts, no legal aid cuts" dies away after a few rounds.

They're encouraged, though, by the presence and support of criminal barristers. On 15 July, the Criminal Bar Association (CBA) voted to join solicitors in refusing new legal aid work, and to withdraw their cooperation in covering cases that crop up at short notice—a policy of 'no returns'.

That unity is tenuous. A few days after the protest, the CBA's chairman accused the solicitors of "a major change of position" in cutting back their strike and called an emergency meeting for 27 July—on the very day 'no returns' began.

No representative of the criminal barristers attended a meeting with Michael Gove on 23 July. The CBA said it hadn't been invited; solicitors claimed it was all a misunderstanding.

A joint statement has since tried to paper over the cracks. But some solicitors are keen to emphasise their uniquely important role in the criminal justice system.

Two campaigners tell me that 93% of all criminal work is dealt with by solicitors. It seems unlikely that they can be so precise, and it turns out to mean the proportion of cases that are dealt with at the Magistrates' rather than the Crown Court, where defence lawyers are generally barristers.

But as some barristers work in the Magistrates' Court as well, and solicitors can argue cases in the Crown Court, calculating solicitors' indispensability so neatly isn't really possible.

What we do know with precision is how much is paid out in legal aid, and this is what the government says it's concerned about. In 2009, legal aid spending was £2.2 billion before administration costs. It fell considerably under the coalition, to £1.6 billion in 2014.

Funding for legal aid has taken up between a fifth and a quarter of the justice budget over the past few years. That budget is being cut: by 27% in real terms under the coalition government, another 10% reduction planned this year, and cuts of up to 40% more being discussed over the next few years.

Ministers say that, quite simply, the MoJ can't hit these targets without savings on legal aid.

This isn't calculated to improve the affection for Mr Gove among lawyers and others affected.

"It's his bloody government that have taken 600,000 people out of representation", Matt Foot tells the Westminster gathering.

This isn't a reference to the criminal dispute at all, but to the changes made to non-criminal legal aid under the law known as LASPO.

The 600,000 figure is a rather stale forecast from 2012. It's a reasoned guess at how many civil cases would no longer be eligible for assistance as a result of the government, among other things, narrowing the range of issues that can be funded.

The National Audit Office has more recently calculated the annual reduction in new cases as between 300,000 and 400,000, saving £268 million.

That way of reducing the cost isn't on the table for criminal legal aid, because the state is obliged to provide some degree of assistance in criminal cases. It's an entirely demand-driven service.

The MoJ's solution is to bear down on the cost of provision. And since the fees now on offer might, indeed, be less than the market will bear, it wants to reshape the market.

This involves awarding duty solicitor work to fewer firms—525, subsequently revised up to 527 following a legal challenge—expected to deliver more for less.

Mr Foot tells me that this is "going to lead to a number of very, very good local firms being cut down".

Few dispute that firms closing down is highly likely. As the MoJ puts it, "the proposed model encourages the consolidation of the legal aid market". A report by KPMG says that "achieving the 17.5% fee reduction proposed is anticipated to require market consolidation in order to access economies of scale".

Graeme Rothwell, a solicitor, says that his firm is under severe financial pressure, but firmly supports the legal aid boycott. He's bullish, saying that "we've got [Gove] to agree that the court system is creaking".

In the context of the need for efficiency and better facilities, Mr Gove does appear to agree. He's also happy to keep talking; solicitors described their most recent meeting as "potentially constructive". Many are willing to grant the Lord Chancellor the benefit of the doubt—or at least the benefit of not being Chris Grayling, his predecessor, whom lawyers found more abrasive.

This relative lightening of the mood may increase the chances of a deal. Whether lawyers can keep the squeeze on in the meantime, amid the pressures of infighting and income, remains to be seen.

An edited version of this article appears on the Times website (subscription only).


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