The public and profession deserve better
From irrational fee arrangements to ill-thought-out consultations on legal services, practitioners may well despair for the future of the criminal justice system, says Mark Fenhalls QC
Over the last two years the Criminal Bar Association has worked closely with the leaders of the solicitors' profession to try to fashion a sustainable future for the criminal justice system. We have faced a period of unprecedented turmoil as government cuts have bitten deep over several years.
Solicitors and barristers alike have been telling the government for years that the situation in the criminal courts is intolerable. There are some signs that the press, the public, civil servants, and indeed some politicians have listened. On 27 May 2016, the Public Accounts Committee published a report that set out how counterproductive the cuts have been to the efficiency and quality of the criminal justice system and, crucially, how victims of crime have been disadvantaged.At the heart of it all is whether either profession has a sustainable future in publicly funded work. Part of the answer to this is in fee reform, of which a little more below. But there is also a real issue about how attractive (or not) students may find a career in publicly funded work when they are generally saddled with colossal debts.
Students contemplating a future in criminal law need to know that either there is some prospect of higher earnings '“ unlikely in the short term '“ or that the market is sufficiently fluid to allow future entrants to dream of setting up their own firms and building their careers. Of all the procurement problems that existed in the 'two-tier' bidding process that ended so ignominiously for the Legal Aid Agency, this freezing of the solicitors' market would have been one of the least desirable consequences.
The Bar has presented the Ministry of Justice with proposals for reform of the advocates' graduated fee scheme (AGFS) and the Law Society has proposed an alternative to the litigators' graduated fee scheme (LGFS). This short article is not the place to argue the merits of the proposals, but I am yet to find a solicitor who has a kind word for the LGFS or who thinks it is fair to the hard-working majority. Most seem to think it distorts behaviour, is unfit for the digital age, and undermines the objectives of better case management.
We all know that work in the magistrates' court and youth court is badly underpaid. The advocacy fee in some Crown Court cases reflects the work done; in others there is an unjustifiable disconnect that is not in the public interest. But there is a particular problem with the LGFS. As many solicitors have spelt out, the large litigation and disproportionate fee in a (relatively) small number of Crown Court cases means that these cases end up cross-subsidising all the other vital but uneconomic work that solicitors do to keep the criminal justice system turning. Many solicitors have told me that without the LGFS from big trials, their businesses would not survive. This is deeply unfair to all solicitors and damages the public interest.
The current arrangements are irrational. The public (and its purse) deserve better than this. Things need to change so that the payment scheme is aligned with real work that is done. No one should think that this is a call for more cuts. Many firms and barristers are barely clinging on as it is and it is essential that the money paid to litigators and advocates alike is not reduced. However, it is essential that such little money as is available in the LGFS is redistributed to make sure that the 'duty of engagement' is properly funded, so that only those cases that should go for trial reach the trial lists, and so that the desperately underfunded cases in the lower courts are properly rewarded.
But the challenges extend far beyond just fees. We face an environment where various regulators are asking fundamental questions about the nature of the legal services market. There seems to be an unending series of consultations from the Competition and Markets Authority, the Legal Services Board, the Solicitors Regulation Authority, and the Bar Standards Board.
Some of these are useful. Sadly, some smack of the 'regulariat' class seeking to justify its own existence. The SRA and the Law Society are engaged in a public tussle about their relative responsibilities. The BSB and the Bar Council have an ongoing debate about how independent they are from one another and whether this somehow damages the public.
On 12 September, the LSB published its 'vision for a future regulatory framework for legal services in England and Wales'. The paper is something that the Law Society, the Bar Council, and others will no doubt be addressing in due course. Most professionals sigh deeply each time yet another consultation arrives in their inbox. Those who summon up the energy to read the questions (and sometimes try to answer them) conclude that the regulators claim an awful lot, but that it is seldom, if ever, based on evidence recognised by practitioners.
It is deeply depressing that the LSB seems to think that the very concepts of 'barrister' and 'solicitor' are outdated or redundant. Perhaps they feel the same way about the terms 'doctor', 'surgeon', or 'structural engineer', for example? I suspect those professionals who summon up the energy to read this will also feel like putting their heads in their hands and weeping.
Mark Fenhalls QC is a barrister at 23 Essex Street and the former chairman of the Criminal Bar Association