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Lord Chancellor divides lawyers over legal aid fees

Government cuts so serious they could undermine the criminal justice system, say solicitors

10 June 2015

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The Ministry of Justice (MoJ) has announced it is to press ahead with a second round of fee cuts for legal aid practitioners and reduce the number of duty provider contracts to 527 from 1,600, which lawyers argue will undermine the criminal justice system and break the back of the solicitor profession.

In a written statement, the parliamentary under-secretary of state for courts and legal aid, Shailesh Vara MP, said: 'Having considered the findings of Sir Brian Leveson's report into the efficiency of the criminal courts, the impact of broader criminal justice reforms, and the impact of changes already introduced, we have decided to press ahead with the second 8.75 per cent reduction to litigators' fees announced by the coalition government.'

The qualified solicitor and justice minister continued that the government would establish an independent review to assess the impact of the cuts and dual contracts model on access to justice to commence in July 2016.

Sinking a profession

In a statement, Jonathan Black, president of the London Criminal Courts Solicitors' Association (LCCSA) and partner at BSB Solicitors, said that both the LCCSA and the Criminal Law Solicitors Association (CLSA) were 'bitterly disappointed' at the Lord Chancellor's decision to proceed with the dual contracting and the second fee cut.

'In our meeting with him he indicated that the ship had already left the harbour,' said Black. 'Our concern as expressed to him is that the proposed regime will sail it straight into an iceberg leading to the sinking of a profession.'

The LCCSA chief added that his group had documented examples of defendants and victims who have suffered as a result of cuts in legal aid and access to justice over the last two years, yet the Lord Chancellor remains determined to press ahead regardless of warnings from experts.

'There is no further fat to be cut, let alone meat or skin, we are cutting deep into the bone. The level of unrepresented parties both in police stations and in courts will simply increase and in the week in which we commemorate the 800th anniversary of Magna Carta the government chooses to confirm its intention to proceed with this dangerous project,' said Black.

Vibrant independent Bar

There was, however, a slim ray of hope for barristers after Vara declared that the government was keen to ensure that the UK retained a 'vibrant independent Bar and protect the high standard of advocacy which is a hallmark of our justice system'.

Vara added that, having listened to the profession, the government had decided not to proceed with cuts to the advocates' graduated fee scheme (AGFS) at present.

Responding to the decision, chairman of the Bar, Alistair MacDonald QC, said he was grateful to the Lord Chancellor for listening to the Bar's concerns.

'The Bar Council continues to have grave concerns about the effects upon solicitor colleagues of further fee cuts and the implementation of the dual contracting scheme. We remain convinced that these measures are likely seriously to damage access to justice and the provision of high quality advocacy services in England and Wales.

'We will continue to advance the case with the [MoJ] and the Legal Aid Agency for robust measures to be taken to protect, maintain, and enhance the high quality of the advocacy market in order best to serve the public interest.'

Commenting on the reprieve for advocate fees, Black said: 'We understand that the advocates' fee cut has not been affected and that he was persuaded that savings could be made elsewhere. This was to maintain the quality of advocacy services; it is disappointing that he would not consider the same argument in respect of litigation services, the provision of which will be further impacted as a result of this cut.'

Breaking point

Apparently 'dismayed' at the news, the Law Society's president, Andrew Caplen, said he was deeply concerned for the immediate future of the justice system and for its continued survival.

'The administration of justice is a fundamental duty of government and access to justice is an essential part of that responsibility,' said Caplen. 'The British value of a fair trial, enshrined in 800 years of Magna Carta, has been built on the foundation that the innocent are acquitted and convictions are sound.'

The Law Society president remarked that the consequences of the government's cuts were so serious that they could undermine the criminal justice system to the point that it may no longer deliver fair outcomes.

'Criminal legal aid solicitors are critical for ensuring that anyone accused of wrongdoing has a fair trial and yet few young lawyers see a future in this work, which is of extreme concern,' he said.

'Twenty years without any increase in fees, followed by two sets of cuts since 2010, had already pushed firms' viability to breaking point. Now many solicitors' practices undertaking this vital work in communities around the country will be forced to close. Others will struggle to survive.'

Caplen added that the representative body for the solicitor profession had shared evidence with the MoJ from over 120 firms already suffering as a result of the first round of cuts.

'The evidence shows that firms are on the edge of financial viability, and these cuts are likely to lead to bankruptcies, firms leaving the market, redundancies and a real impact on the quality of service.'

Direct action?

As reported by SJ in May, the new Lord Chancellor, Michael Gove, while writing as a Times columnist once proffered his opinion that 'legal aid had been a conspiracy against the public for too long' and that it allowed lawyers to wallpaper their offices with taxpayer's money.

Tony Cross, chairman of the Criminal Bar Association (CBA), said that the CBA regretted the MoJ's decision to impose further fee cuts on hard-pressed litigators but acknowledged Vara's recognition of the 'critical importance' of the advocacy undertaken by the Bar was welcome.

'The executive of the CBA will be discussing our response at the earliest opportunity, including further consultation with our membership,' he added.

Black, however, said that he had in mind the recent words of the retired Court of Appeal judge Sir Anthony Hooper when he called for a 'revolution' by lawyers during the Vote for Justice rally in April.

Black added that the LCCSA would listen to its members before considering how best to respond.


John van der Luit-Drummond is deputy editor for Solicitors | @JvdLD

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