Legal Aid

Everything will be all right in the end. If it's not all right, then it's not yet the end.

PUBLISHED March 25, 2015

Below is the text from Richard Miller's recent address to attendees at the Law Society's Legal Aid Conference:
If we win, the tender process will be quashed. There won't be time before the election for the Government to address any issues and reopen the tender, so it will be a question of what the new Government wants to do instead. It seems unlikely to me that a new Government, of whatever shade, would want to proceed with this particular model, so I would expect a registration process to be set up pending further consideration of the longer term.
If we lose, a whole host of issues arise. We have spent a lot of time over the past few weeks considering what we would do in this situation.
As per the message sent out via Bravo after the hearing, " the Lord Chancellor will consider next steps and further information will be shared in due course."
It would be open to the Government to restart the tender. So what might the timetable look like if they did so?
The LAA committed in December to allow the full outstanding five weeks and two days, so if the tender were to open tomorrow afternoon, the deadline would be 26th April. The MoJ indicated in statements in the hearing that they need at least four and a half months to process the tenders. This would suggest that notification of contract awards would go out in or around mid-September. Given the need to allow at least three months from contract award to the starting date for the new services, this would take us through to mid-December, but logically in that situation, the LAA might set 1st January as the revised starting date.
This would mean that the MoJ would have to find a way of extending the existing contracts to the end of the year. Given that they have already said that extending the contracts as they have done is not strictly lawful, they may have reservations about doing so. In addition, it seems to me to be virtually certain that a significant number of unsuccessful bidders will challenge the award of contracts. This could have the effect of suspending the contract awards in many procurement areas, leaving the MoJ with a very difficult situation for which they do not appear to have any contingency plans in place. I am sure that these considerations are the reason why the Bravo announcement last week was a bit more tentative than anything we had heard previously.
Of course, there is also the little matter of a general election in May. Labour's position was made very clear this week by Shadow Solicitor General Karl Turner during Justice Questions, when he said,

"The Justice Secretary has confirmed that he will plough on with his barmy idea for two-tier contracts for criminal solicitors, so it will fall to either the Court of Appeal or [Sadiq Khan] to kick this barmy idea into touch forever after we win the election."

Chris Grayling responded with the usual MoJ line about ensuring suspects in the police station are represented even in difficult financial times. Of course, some of us have noticed that the cost of abandoning this scheme and the second fee cut, and maintaining the current structure, would be less than the cost to the Treasury of the one penny off a pint of beer announced yesterday.
But this does indicate a very strong commitment by Labour to abandon the process if the Lord Chancellor were to reopen it, and Labour were to form the next Government.
Even if the Conservatives form the next Government, a lot may depend on what bids are submitted. If, when civil servants look at the bids, they find there are large parts of the country where there are insufficient bids, if in London there are hundreds of bids in each procurement area so that they are likely to be unable lawfully to separate out the ten or so firms for a contract without facing an avalanche of legal challenges, the new Ministerial team might well conclude that discretion is the better part of valour, and that a different approach should be adopted.
For all of these reasons, whether we win or lose the case tomorrow, I find it very difficult to see this scheme being introduced.
Whatever the outcome, there is also the question of the second fee cut, scheduled for July this year, alongside the cut to advocates' fees. Last March, the Lord Chancellor committed to undertake a review before reaching a final decision on these cuts, taking account of the Leveson and Jeffrey reviews, and considering the overall financial position of the MoJ. Our view is that such a review must necessarily involve engagement with stakeholders. No such engagement has taken place.
The Lord Chancellor faces another potential difficulty if he seeks to implement this fee cut. In the February 2014 decision, he made it clear that imposing the full 17.5% fee cut before any market consolidation posed too great a risk of the market collapsing. In the November decision, he introduced a three month gap between the fee cut and the consolidation. He stated that he could do this because the introduction of the interim fees meant that the overall impact on firms up until October would be no greater than a 5% reduction in fee income compared with the position before the first fee cut. That three month gap has already been extended by another two to three months, and for the reasons I have already outlined, particularly the risk of legal challenges to contract awards, there is a high likelihood that that gap may extend still further.
With that delay and further doubt as to the timing of any consolidation, introducing the second fee cut, despite all the evidence the Lord Chancellor acknowledged last February that the market cannot take it, would seriously imperil the Lord Chancellor's absolute duty to provide criminal defence services to those detained in police stations.

Closing remarks

These are dark times for access to justice. As Sir Stanley Burnton said so eloquently this morning, access to justice is under attack on numerous fronts. But justice and the rule of law are too important for us to buckle under and give up. We are the torchbearers. For many years, lawyers have shown themselves to be hugely resourceful and innovative. In the 1940s, it was lawyers who got the legal aid system set up in the first place. In the 1970s, it was lawyers who took up the mantle of social welfare law on behalf of the poor and the dispossessed, pushing the boundaries of legal aid to enable them to stand up to unscrupulous landlords and uncaring public authorities. In the 1980s, lawyers pressed for legal aid to be extended to cover advice to suspects in the police station, and it is now so well embedded that it is shocking to think that this was ever not available.
For forty years, we were winning. We had Governments, both Tory and Labour, to whom social justice was an important concern, for whom people mattered more than how you can make numbers dance on a spreadsheet.
But then the pendulum started swinging the other way. Lord Mackay started the attempts to rein in expenditure on legal aid. Then the Access to Justice Act 1999 ruled that instead of justice being made available to everyone who needed it, the State could decide that we cannot afford to give justice to everybody - a truly crass notion.
Throughout the 2000s, we faced a freeze in the overall budget, harsh cuts to fees, and salami-slicing of eligibility, before the mad axemen of LASPO took over in 2010, with the results we all know so well.
I live in hope that the pendulum has now swung as far as it is going to in that direction, and that it will now start swinging back again. We see with the impact on the Courts and the willingness of the judiciary to speak out the wholly counterproductive nature of some of the cuts. The recent reports from the Parliamentary Accounts and Justice committees reinforce the view that the cuts have gone further than Parliament intended, and the injustices are starting to impinge on the public consciousness. Public polling that we did with the Legal Action Group shows public support for cuts to legal aid falling.
On a broader level, we see electoral support for the two main parties falling, with almost a third of the electorate now indicating that they intend to vote for someone offering something different. The appetite for a move away from politics focused on macroeconomics and towards politics focused on people seems to be growing. This gives cause for hope that we may be able to win some of our arguments on the human level, rather than always having to focus just on the economic case for legal aid.
The tendency to innovate remains strong. The challenges of technology outlined by Roger Smith show how the world is changing. Within this new world, we may find new ways of attracting clients, new ways of delivering services, and new roles for ourselves. I hope that our session on digital working helped set the scene of where we are now on this digital journey, and where we may be heading.
Like Colum, I do not believe that technology is going to drive us out. I share his view that what our clients need is a real person providing real human support; and I believe there will be enough people who need that for the foreseeable future for us not to have to worry about being made redundant by machines. Colum also showed one way of innovating from a business perspective. It was a refreshing challenge to the increasingly prevalent belief that legal aid is incompatible with being a successful business. Even if you do not see yourselves as running big firms with private capital investment, hopefully our sessions on practice management, billing, and practice development in the area of advocacy will have given you ideas as to how can enhance your businesses.
The innovation of lawyers to fight for both our clients and the legal aid system itself has also been on display today. Joanna Miles's summary of the novel approaches from the President of the Family Division, opening up new potential streams of funding for lawyers, might leave you considering applications you can make to the Court on behalf of clients of yours. Meanwhile we will continue to support the work of the Public Law Project in trying to push the boundaries of LASPO so that it ends up covering rather more cases than it does on the Government's current very narrow interpretation of the Act.
For the criminal practitioners among you, I would imagine that Colum's description of Government interventions being uncommercial range particularly true. We continue to be faced with chronic uncertainty, which won't be resolved at least until a few months after the General Election. Even with a different Government, we are still likely to be facing challenging times. But in this area in particular, as Ed Cape outlined, international developments may provide us with some tools to help keep the Government in check.
I would like to thank all of our speakers for giving up their time to share their wisdom with us today, and I hope that you feel you have got something of value out of the day.
My closing message to you is to continue to be the torchbearers of access to justice. We know our arguments are right. They make sense from an economic perspective, they are essential in maintaining a society governed by the rule of law rather than by might, and they are unanswerable on a humanitarian basis.
I will finish with a line from the Best Exotic Marigold Hotel:

"Everything will be all right in the end. If it's not all right, then it's not yet the end."

It's not yet the end.
Thank you.