On 13 January 2014, The Law Society hosted an informal event at the Bristol Magistrates’ Court to engage with criminal defence solicitors on the challenges facing criminal legal aid.
Andrew Caplen, the vice president, and Richard Miller, the Law Society’s Head of Legal Aid, presented an overview of the current position and discussed the issues still facing practices and practitioners following the government’s proposals after the April 2013 Ministry of Justice consultation. Andrew Caplen practised as a duty solicitor in Southampton until 2012 and chaired the Access to Justice Committee for 4 years and Richard Miller was head of the Legal Aid Practitioners’ Group until joining the Legal Aid team at the Law Society and it was clear how strongly they both feel about the issues and are toiling on behalf of the profession.
Approximately 30 practitioners attended, from as far afield as Taunton and Yeovil, and listened to summaries of the reality of the current position and the efforts being undertaken by The Law Society to represent practitioners’ interests, before taking a variety of questions from the floor.
The main threats to come out of the April 2013 MOJ consultation were:
1. A cut in criminal legal aid fees of 17.5%,
2. Larger procurement areas,
3. The removal of client choice, and
4. Price Competitive Tendering.
Having seen the cuts to civil legal aid, The Society had to pre-empt the results of the consultation and prepare by meeting with practitioners and representative groups ahead of the consultation being published. While there were differences of opinion in terms of tactics, The Society maintained an approach that allows them to engage with the MOJ and highlight the issues in order to represent the profession’s best interests.
In the summer of 2013, The Society put forward an alternative proposal to try and counteract the effects of the MOJ proposals.
However, a persisting issue was Price Competitive Tendering as a method of allocating police station slots, as proposed by the MOJ, which risked smaller firms failing to win contracts, to devastating effect.
When, after continued pressure, the MOJ agreed to drop Price Competitive Tendering, The Society had to seize the concession and thereby avoid one of the immediate dangers to a large number of firms.
Despite reports to the contrary, it was emphasised that The Law Society did not come to any deal whereby PCT was dropped for an agreement on cuts in legal aid fees of 17.5%.
In September 2013, the MOJ agreed to have KPMG and Otterburn run models on the proposed figures, in response to projections The Society put forward.
In addition to this, the Society has recently commissioned a report on the MOJ forecasts for the legal aid budget, jointly with the practitioner groups, by Oxford Economics, which has now been published in the Guardian and on the Crimeline and Law Society website. Click here to view the report: http://www.lawsociety.org.uk/news/press-releases/research-shows-ministry-of-justices-legal-aid-bill-could-fall-by-84m-without-the-proposed-cuts/
Amongst other things, the Oxford Economics report suggested that the MOJ figures do not take falling crime rates into account and that there would be £84 million more in the system than the MOJ have forecast.
The Oxford Economics report has, therefore, provided an argument that the immediate pressure on the MOJ to cut fees is not as great as they think it is.
Similarly, the Society is hopeful that progress is being made against the proposal for a flat fee for guilty pleas and contested trials alike, which presents such a clear risk to defendants, and talks are continuing to argue for a significantly greater number of legal aid contracts across the country than the 400 envisaged by the MOJ proposals in April 2013.
Arguments continue against some of the procurement areas being too large, which may be unsustainable for firms, especially when faced with the proposed fee cuts, as well as other contested points.
Work continues on streamlining the process to make Consortia possible and advice is ongoing from Deloittes and Irwin Mitchell to establish workable models with the least oppressive formalities, with an agreement in principle on the cards.
While progress has been made since the April 2013 proposals, and even since the consultations in September 2013, the Ministry are expected to publish their decision imminently, even by the end of January, but The Society intend to continue making representations.
The Society will work with Deloittes to release guidance on forming consortia within a week of the MOJ conclusions and will arrange a series of formal roadshows to engage with members to continue gathering views and opinions to carry on the fight.
Following questions from the floor, Andrew Caplen and Richard Miller responded to a number of particular concerns.
They made it clear that The Society had learnt from the lessons of the Special General Meeting and will ensure there is effective engagement with the profession in the short and long terms.
Efforts are ongoing to ensure that the reality of the situation is clear, after the MOJ took to the media with facts and figures that only represented a fraction of the picture, but it was acknowledged that the media have little interest in the current plight, being largely unaware of the extent or reach of the problems now, or for the future of criminal defence.
It was agreed that the proposed larger procurement areas would have more significant effects than pressure on time and travel costs. Clients are unwilling to wait for the necessary representation to arrive beyond about 45 minutes and, with firms traditionally clustering around existing designated police stations, the imminent move to fewer super detention centres, situated miles from the customary areas, adds further pressures for practitioners and creates greater risk for defendants.
With these representations having been made, the MOJ has agreed to review the responses on procurement areas, including the differing impacts between urban and rural areas.
The Society have also suggested alternative routes to avoid the procurement issues in the MOJ proposals and argued against those proposals that could result in the criteria used ending with irrational results.
It was noted that there have been no proposals for assistance to be given to criminal legal aid firms with the IT suggested that will be required to keep up with developments being pushed through in the Courts and Crown Prosecution Service. The Society is continuing to raise these points as part of the general argument over fees.
The Quality Assurance Scheme for Advocates remains a further point of dispute and, while the Criminal Bar Association have taken Judicial Review proceedings, The Society has taken the position of an interested party for the time being to avoid costs consequences and continues to put the point that QASA should be put on hold until the MOJ position on the current proposals is finalised.
It was recognised that the views of the profession are in alignment with the Criminal Bar, but that the options available in terms of responses to the MOJ proposals differ. Guidance was given on the position of the profession if the Criminal Bar Association take further action with walk outs, with professional competence being paramount and a valid reason to refuse to act in the absence of Counsel, even where under pressure from the system.
The society will be releasing guidance on the position and have made it clear that they are available to support any members being unduly pressurised to do advocacy, even where it comes from the Courts.
Finally, The Society advised those affected to keep an eye on the Law Society Website and Professional Updates for developments and advice and for news of upcoming ways to be involved.