Letter to the Lord Chancellor – What you are going to miss

Dear Mr. Grayling,

I can’t tell you how pleased I am to be coming to your place to speak to you about your plans for transforming legal aid.

In case I don’t get the opportunity to raise every point many dedicated and angry lawyers from South Yorkshire  want me to raise on Monday  I thought I’d take the opportunity to drop you a line or two expressing my own thoughts .

You know I think the greatest problem with all this is you think it is about money but it’s not about money at all for us it never has been.

The current cuts you propose are admittedly the most draconian of a long list of cuts we have had to suffer but whilst we have objected to the cuts in the past that is not what causes the Solicitors, Barristers and  academics to stand together over these proposals.

If it were about the money we would long ago have swopped our lives spent in dirty, dingy police stations in the middle of the night for nice plush offices doing commercial or banking law.

We do what we do because we care about people and want to stand up for their rights. Coincidently we do not act for criminals we represent people who have been accused of crimes. It is worth remembering that many people  accused of crimes have never been in trouble before or committed only a minor misdemeanor.

That brings me to the most concerning of your plans the removal of Client Choice. This is a proposal that cannot and must not be imposed. Imagine the person accused of a variety of crimes, which an ordinary person could find himself or herself facing:

  • Death by dangerous driving
  • An assault or a domestic incident
  • Manslaughter
  • Sexual allegations

Are you seriously contemplating that they should just be told who their solicitor is and not be given any choice?

That if they have been in trouble before the detailed knowledge their solicitor has of them should be lost both to the Client and to the Court.

We operate in a system, which values skill and expertise. that we invest and encourage those studying the law to develop . These skills are then enhanced over many years of practice. We have Solicitors and Barristers who are highly committed and skilled in what they do.

In particular many have developed particular skills or niches, which not only assist their clients but also assist the Court in effective administration of justice.

And to be clear the Barrister who uses those skills to defend an accused this week may be using the same skills to prosecute an accused the following week.

Without client choice those skills and abilities will be lost there would be no purpose in retaining them as they would not be rewarded with instructions based on skill or reputation.

The public lose out, the Crown lose out, the Court lose out and lastly as always we lose out.

I want to talk to you later in this letter about miscarriages of justice but let me just say that the imposition of any system that restricts client choice diverting away from representation selected on the basis of skill, competence and results will inevitably mean an increase in miscarriages of justice.

What of the proposed budget you say you have to be cut which we are told is £220 Million but then one of your staff suggests we may in fact be facing cuts of £350 Million.

How are we supposed to react when we have no certainty over the figures and at one of your Department Consultations Meetings it is conceded that a lot of the figures you have come up with is based on out of date figures.

Come on even you would accept that what you propose will have a fundamental and permanent effect on the Criminal Justice system so don’t we deserve a bit better accuracy over these figures.

You can understand our concern when we are confronted with failure and waste at every turn such as Failed Interpreters and Prison Contracts leading to unnecessary loss.

Then on 16th May you announce new Traffic Courts what on earth for? Most Courts run weekly traffic courts all you need to do is get the process better not spend money on projects such as traffic courts which are nothing more than PR.

There is systematic failure in the criminal justice system there is no doubt about that. But it’s never been the fault of Solicitors or Counsel, it may be a bitter pill to take but it is the excess of other institutions who contribute to the justice system that needs reform and where considerable savings could be made.

When did the MOJ bother to ask us about these areas and how money can be saved as opposed to simply attacking us repeatedly? “The Legal Aid Football” has been kicked around so much that it is about to disintegrate.

Here is an example of what is wrong with the system. One of our Solicitors was recently called out to the police station in the middle of the night to deal with an allegation of a theft of a “kinder surprise” egg Cost 79p. The accused had an interpreter and 2 CID officers conducted the interview. He was charged and then required further court time and interpreter services at the Court. The total cost of this unnecessary case ran into thousands of pounds.

Trust me there are many more examples of waste I and many other lawyers could give. The difficulty is this involves the MOJ accepting what which you might regard as a politically untenable concession to make , that the whole systems decay lies at the door of the State and politicians past interference with it , it has nothing to do with the hard pressed practitioners who work within the system.

There are otherways you could make considerable savings as well. For example I would remind you of Section 128 of LASPO and your commitment to lower the release threshold for IPP Prisoners. At cost of £40,000.00 per annum to keep a prisoner in custody if you released 3000 prisoners you would save £120 Million.

We need to be sure that you have looked carefully at all possible reforms and savings before you simply target us.

Its also unclear whether you have an effective strategy to lower the supplier base or whether that is simply a consequence of your plans to impose PCT. Put simply do you want the supplier base reduced in any event?

Obviously it’s pretty clear that no one at the MOj has really been out and considered the changes proposed and the idea of a geographical limit on contracts. Some of the contracts proposed are simply impossible and it would be impracticable for anyone to travel and service the contracts you propose.

Many firms that provide an excellent legal service around the country are not large or monolithic organisations but is seems the proposals are so badly drawn that it would not even guarantee those large operations that a contract at the level of work they currently undertake would be provided .

You say that Geographical contracts with no client choice will help provide certainty and yet you then admit that you cannot guarantee anything.

For years Solicitors have been complaining about charging policies of the police service and that hasn’t even been adequately addressed so its difficult to see on what basis these proposals can ever succeed or any guarantee of volume could be provided .

There is little doubt the tender had been written in the expectation that larger organisations or even worse enterprises like G4S would bid.

What possible confidence would the public ever have in such organisations bearing in mind recent history?

There is also a fundamental issue here which none of the consultation addresses. The Criminal Justice System is built upon an invisible element one which G4s or large organisations cannot tender for. It is called goodwill and professionalism.

Take for example a trial; its proper conduct relies upon the Solicitor and Counsel going the extra mile at their own cost. It relies on them working through the evening to prepare for the next day or week, to giving up weekends and to often undertaking work for which no fee is payable.

We have already had a sustained attack on graduated fees and the current decision not immediately to address Advocate fees in the Crown Court offers no reassurance .

How do you propose a Criminal Justice system should respond to the fact that trials will take longer and adjournments will increase because cases will not be properly prepared or ready to proceed because the very advocates who were prepared to do this are being put out to grass .

This brings me conveniently to miscarriages of Justice and the issue of pro bono work. Our appellate system, which your proposals are guaranteed to flood with lots of extra work, relies on a large amount of pro bono work (that’s free without payment!).

Whether it’s investigating a miscarriage of justice case or supporting the case through to final hearing before the Court of Appeal or making submissions to the CCRC.

There has already been a drive of good solicitors away from miscarriage of justice work because of the depleted fees available which don’t even cover the cost of doing a review . Currently an appeal lawyer is expected to take on a review of a murder case for £300, which on your proposals will now be cut to £247.50. Little wonder it is proving harder and harder to get any adequate reviews undertaken in such cases for those seeking justice.

Apart from limited extended funding to investigate positive cases which no doubt will be equally cut the work if it undertaken will all be done pro bono. Even when the Court of Appeal grants a representation order it is always now very limited and the removal of defence costs orders since last October means that payment for all that work done is a virtual uncertainty.

But again its not really about the money its about the fact that the system relies on this work to drive forward appeals. We currently for example have 2 key CCRC referrals awaiting hearing before the Court of Appeal criminal division. In both these very limited funding has been used and the vast majority of many hours of work has all been undertaken pro bono with no prospect of recovery.

Lord Chancellor do you really believe that the sort of organisations you envisage bidding will do any of this work – they will not. The admired appellate system of this country will fall into collapse with these proposals.

Finally there is the issue of prison law an area I know ripe for PR Policies by your department, which demonstrates once again a lack of joined up thinking.

You effectively want to make prison tougher and yet meet the dual aim of achieving rehabilitation. Yet you also want to remove Sentence planning work from scope, which consistently with legal representation achieves more timely progress through the system and better prospects of the work that prisoners need to do being achieved.

Of significant concern is the prejudice of you proposals  to those who suffer from mental health issues being denied access to proper assistance and help. And of course not least of concern is your attempt to resolve the ambit of Judicial Review proceedings, which is the only viable way in which state institutions can be monitored and those in custody can obtain protection.

As I have mention previously if you want to make savings in the Prison system there are ways to do it without introducing measures, which will stifle the very aims of your overarching public policy.

You know Lord Chancellor the real problem with all of this is that it is simply not going to work, the consequences of failure will be disastrous and its clear from the consultation meetings that you have no clear policy to address these issues and the consequences that follow.

I noted from the last meeting with the Law Society that you said you were open to be persuaded but were unwilling to withdraw the PCT suggesting an 18-month period before implementation. However we both know that’s not really true and once you give the Legal Aid Agency the green light we will be in the process and it will prove almost impossible to turn back.

Of course I can understand having put your name to this consultation you will not want to be seen to back down because that’s always the paramount concern for politicians.

However why not take the higher ground and say that this coalition government does listen and that it is already clear that this consultation as currently drawn is a proposal which will not work and bring potential consequences which are too far reaching.

That rather than give an ultimatum of its PCT or 17.5% cuts or more across the board take an opportunity to withdraw the PCT and extend the consultation making it wider and more in depth and consider a more sustained and robust review of delivery across those who deliver criminal justice in this country. To take the opportunity to have joined up thinking across the Criminal Justice System . Such an approach is likely to  bring you greater savings in the long run it would be the statesman like thing to do.

As the Prime Minister said:

“At a time when we’re having to take such difficult decisions about how to cut back without damaging the things that matter the most, we should strain every sinew to cut error, waste and fraud”

There is a lot more we can do here without damaging the things that matter the most.

I hope you will take the opportunity to listen to what we have to say to you and reflect very carefully upon it. We say it not out of self-interest but the public interest.

Yours Sincerely

Mark Newby

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