Why have lawyers taken to the streets to protest against legal aid cuts? Self-interest or because they care about the havoc they see being wrought on our legal system?
Legal aid, the provision of advice and representation in court to those who cannot afford to hire a lawyer, was established by Clement Attlee's Labour government in 1949. Supporters revere it as one of the principal pillars of the post-war welfare state. However, over the years, costs have escalated as the UK became an increasingly litigious society.
The latest cuts of £215m to criminal legal aid – which have reduced lawyers' fees by up to 30% – have provoked successive mass walkouts by criminal barristers and solicitors since January. Solicitors and probation officers – who oppose Grayling's plans to privatise offender rehabilitation services – staged a 48-hour protest on Monday and Tuesday, culminating in a march on the Ministry of Justice (MoJ) bearing an effigy of the secretary of state. Criminal barristers, however, reached agreement with the MoJ last week after the government agreed to postpone, until after the election next summer, some cuts for advocacy in crown courts.
In the old days, we solicitors used to be paid an hourly rate for most of the work we did under legal aid. The rates may have been lower than privately paid work, but we were at least paid for what we did. That meant the most complex and demanding cases would often prove to be the most profitable. Some years ago, the payment system was replaced by a computer program that in most cases provides a fixed fee for a particular case. That fee has been driven down and down, and is now at the point where people are finding it difficult to do the necessary work.
If a defendant comes to me with a complicated defence and multiple witnesses that need to be seen, and possibly with the need for expert evidence – or if they have mental-health problems or language difficulties – these issues add to the time required to prepare the case but generally produce no additional payment. What this means in practice is that the very cases that require the most time and attention are also the least profitable. The danger is obvious.
Fees for police station work are about £200 per case. That's fine for a simple shoplifting case, but if, say, you are called to a case where five people have been arrested for a street fight, that could be two days' work, and you might have to return for a further interview on another day. We've entered a bizarre world where the most complicated cases earn the same as the simplest ones; you get the same fee regardless of whether it's shoplifting a packet of crisps or a murder.
Everyone knows these cuts are not sustainable. Standards have already fallen. You might be lucky and get a lawyer on legal aid who defends you brilliantly, but generally the standard of justice has been reduced. The direction of travel favoured by the government is that many firms will go out of business, and big practices will come to dominate. There will be mass redundancies among lawyers and shotgun weddings between practices.
Lawyers will be less inclined to take on the toughest cases. Think about the famous miscarriage-of-justice cases. There, the image is usually of a committed lawyer with a bee in his or her bonnet, determined to do something for their client. In the brave new world of factory law firms with non-qualified staff monitored for their productivity, where's the room for the lawyer to do this unprofitable and often unpaid work?
We pride ourselves on giving the fullest and best service to people of all backgrounds and whatever their needs, but changes to the legal aid system are making it difficult to protect some clients. We can now identify people who, when they walk through the door, we know are going to lose us money, and some firms are already turning those people away.
Imagine a "bag lady" walks in with bundles of papers. From a sea of paperwork she fishes out a summons for, say, not informing the benefits agency of a change in circumstances. She doesn't recall whether she ever told them, but she wants to fight the case. It would be so easy to send her on her way. Who will now take time to build up her trust, go through her papers, and work out what's really going on in her life? Who has the time and energy to do that in a world where everything is being cut? The government seems to think it's a badge of shame rather than a badge of honour that we have a legal system that is the pride of the world. You get what you pay for.
The vast majority of criminal firms will not be able to survive the cuts of 17.5% in fees. Solicitors' firms are simply not that profitable.
[The Ministry of Justice is] gambling that these changes are going to work. It's akin to betting on a rank outsider in the Grand National. They are betting on firms' commercial existence, on partners' houses and on the future of the criminal justice system. This has no basis in the evidence that I can see. There will soon be two types of firms: those who say they don't want anything to do with the new contracts and the ones that give it a go and go bust when it doesn't work.
There will be advice deserts, places where there are no firms to represent defendants. Solicitors will see that they can't make a profit. There are firms already that have gone under.
We have seen what happens to the standard of representation in public defence work, for example, in the US where it is left to law students, those who have retired or who are not at the peak of their profession.