The criminal legal aid cuts: is it possible to survive after 20 March?

Grayling’s axe descended on criminal lawyers last week, when, on Thursday 20 March, his 8.75 per cent cut in legal aid fees came into effect.

One thing the justice secretary has achieved is to unite this part of the profession in anger. The previous government sought to divide the large criminal legal aid firms from the small. The strategy was to give more work to less firms, which could benefit from economies of scale.

The MoJ’s current approach is to ignore advice from the Otterburn report, which it jointly commissioned with the Law Society, and instead push ahead with the cut before consolidation had taken place.

“Everyone is united by a common indignation at what they’ve done,” Franklin Sinclair (pictured), senior partner of the largest legal aid firm, Tuckers, said. “Everyone is very angry, scared and worried about how they can service their clients.”

Sinclair said the divide between the big firms and their smaller brethren “did not exist at this point”.

Law Society guidance to criminal lawyers on how to cope with the cuts highlighted how fragmented the market still is. The top 10 firms had a market share of only 7 per cent in 2012. The overwhelming majority, 96 per cent, had less than 15 duty solicitors.

Almost a quarter of firms, described as ‘micro’ by the Law Society, had only one duty solicitor.

Sinclair speculated that some of the firms which failed to attend last week’s meeting at the Palace Hotel in Manchester may not have even known about the cut.

“I think there were three reasons why people did not turn up to the meeting,” Sinclair said. “The first is the short notice. Then there are people who are aware of what is going on and can see an advantage for themselves.

“There are also people who haven’t got a clue what is going on. They are living in a little cocoon and do not know about what is happening.”

Around 500 solicitors, from criminal legal aid firms with over 700 contracts and representing around 45 per cent of the market did attend.

One of the motions carried called for ‘ultra-compliance with the criminal procedure rules and a total withdrawal of goodwill across every part of the criminal justice system, and there will be no work on any case until a legal aid order is in place’.

Sinclair said getting firms which did not know what was happening to comply with a ‘work to rule’ of this kind would be difficult, and the message would have to go out “far and wide”.

He said that if a national ‘work to rule’ was agreed on, it would lead to a “different relationship” between law firms and the criminal justice system.

“I would like to see solicitor representatives withdrawing from court user groups across the country,” Sinclair said. “Also, we are often asked to disseminate information, and we’re always very amenable. Co-operation would be replaced by being awkward.

“We would make sure court awards and time limits were strictly enforced and the criminal procedures rules enforced to the letter.”

Sinclair added that despite his opposition to the fee cut, he remained in favour of “radical restructuring” of the market.

Another of the motions carried by the meeting Sinclair said the two day protest planned for 31 March and 1 April would include refusing to send duty solicitors to police stations, despite the danger of breach of contract.

Bill Waddington, chairman of the Criminal Law Solicitors Association (CLSA), said there was no question of firms simply accepting the cut and getting on with it.

“They will take desperate measures to survive under a system they don’t agree with and don’t like, while they continue to fight on,” he said. “These proposals are extremely challenging for businesses and the criminal justice system.

“There was a very sad moment following the close of the Manchester meeting when two people came up to me to say that sadly they would not be at the next meeting, because following the latest cut, they would not be able to continue. That is the harsh reality.

“You’re talking about 8.75 per cent in a market where the average net profit is five per cent.”

The CLSA and London Criminal Courts Solicitors Association are, not surprisingly, looking into the possibility of a judicial review. The threat of a judicial review from the Law Society may have helped the previous government abandon its ‘best value tendering’ plans in December 2009, but a judicial review against a fee cut, which has already taken place, may be a tougher challenge.

 

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Nothing to lose

"Firms are fundamentally angry about the fee cuts, but they are also worried about duty contracts which come in next year. Large firms might not get enough contracts, while small firms could get nothing.

There is enormous uncertainty out there. Until the criteria for applying for contracts are on the table, firms won’t know where they stand. It could be a real bloodbath when firms compete for these contracts.

The big problem firms face immediately is the fee cuts. The problem for the government is that when they put people in a position where they’ve got nothing to lose, they fight. Previously solicitor solidarity has cracked because some people could be seen to gain. Now there is a united front.

The government is fighting on two fronts because the boycott of returns by barristers is clogging up the courts and will cause a problem for the government. Barristers, like solicitors, have nothing to lose.

It’s not like civil legal aid, where the government has got away with advice deserts for years. With criminal legal aid, the government needs a spread of services because people need to have recourse to a lawyer.

They’ve got the Criminal Defence Service in their back pocket, but that would cost more than paying private practitioners. Grayling thinks this is the easiest option. If he cut the salaries of prison officers by 30 per cent, they would go on strike and you would have a service staffed by the army or the police. Access to justice does not come into his thinking."

 Steve Hynes, director of the
Legal Action Group