The Offer to the CBA

PUBLISHED May 31, 2018

The Offer to the CBA
Even a slight repair to the erosion of fees after more than two decades of inflation and cuts is welcome
The AGFS – a short history
We do not know what specific  criticisms of the AGFS have been made. It was at inception a Bar scheme and strongly opposed by The Law Society solicitor representatives in the negotiations and consultation with the MoJ . For example, the Bar scheme drastically reduced fees for guilty pleas, a change that ran counter to the Leveson proposals to frontload fees to incentivise early engagement and if possible resolution and impoverished the lower end of the Junior Bar as well as Solicitor Advocates which some suspected was the true intention .The Solicitor criticism was that this fee structure would therefore make the Bar unsustainable .
Those leading the Bar scheme proposed a new structure within the cost envelope. Solicitors argued that the scheme redistributed fees upwards ,  QCs in particular being the beneficiaries.
What we do agree is that fees paid across criminal defence work are so eroded as to be untenable for much of the work .It has not been living among the swings and roundabouts , more like having one’s feet nailed to a descending escalator .
The sudden disquiet of the Bar under a new Chair reflected the diminishing value of fees seen through the telescope of time and perhaps the realisation that more senior juniors had lost substantially in the PPE stakes .
This Dispute
The LCCSA and CLSA asked at the outset for a joint negotiating body, an agreed agenda for fee reform, transparency,  no secret meetings, and to address issues across the whole defence community.  Those requests were repeated in public at the launch of The Charter for Justice event , at the only round table meeting that took place between solicitor and CBA representatives on 16th April  as well as in private emails and telephone conversations. We asked directly if meetings were taking place , with whom  and what the agenda was in relation to the  AGFS ; each time the questions were  evaded and left unanswered .
We were however asked not to undermine The Bar’s refusal to take on post 1 April legally aided work  by deploying Solicitor Advocates and in House Counsel  to fill the gaps. Solicitors, already with their hands full in the midst of the 14 hours regime  and audits  became in some instances the targets of hostile Judges and contract managers, generally being on the receiving end of the economic and time consuming administrative burden whilst experiencing  great difficulties managing client expectations and cases . Put shortly the greater burden of the “ strike “ fell on Solicitors , confirming once again that the world is replete with irony .
We wrote to the Presiding Judge, LJ Macur explaining the unfolding landscape from a solicitor perspective .
We raised another important issue , similarly ignored , that in our view there could be no   “settlement “ of a new scheme without the participation of The Law Society who are the statutory consultees and that it would not be lawful to proceed without that engagement . It is baffling that The MoJ appear to be able in the late night secret meetings to offer treasure , although we might attach the word “modicum “ , unilaterally. The latest Monday Message blithely ignores this issue .
What the offer does expose is the lie that is austerity. In the general scheme of Government expenditure , currently over £800 billion per annum , legal aid at £1.5 billion is a flea bite. It never features in the commentators’ coloured pie charts of where the money goes at Budget time, it is the petty cash of Government. During the decades of cuts Government spending has doubled , that’s an extra £400 billion .When Jack Straw was spouting the myth that legal aid spending was out of control, although  in fact it was driven by demand , at £2.4 billion , Government was simultaneously spending a handful of billions on workers compensation schemes .
Cutting legal aid has always been a political choice and too often the Minister for Justice a more than willing actor popping in and out of the revolving door of reshuffle pausing only long enough to volunteer cuts to the Treasury and have a career enhancing moment .
So Where Are We At ?
“ No Returns “ is suspended .We have not been asked our view on that or indeed at any point on action or its timing .We have had no voice at the table .The Law Society, LCCSA and CLSA have all made their views plain , that Government needs to come to a larger and rounder table to address the Criminal Justice crisis .
Solicitors conduct the vast majority of criminal defence work. It is our clients who are increasingly not eligible for legal aid as they fall out of scope , The Means Test having been last reviewed in 2008.
It is our goodwill and unpaid work that makes good the daily deficiencies in the administration of courts and repairs the failures of process .
We know, because they are our clients and their families that there is vast unmet need in civil work.  The “ hostile environment “ has been manifest not only in immigration but especially to benefit claimants who routinely face penalties far greater than punishments imposed in criminal courts ; hostility has been the attitude underpinning the changes to personal injury litigation which has been an historic attack on the hard worn rights of working people; LASPO was a blatant assault on civil access to representation and justice taking millions of people and claims out of scope. Those people simply vanish from the Justice landscape.
In short it has been a hostile environment for access to justice,  extending paradoxically to the police and, despite the rhetoric , to victims of crime as police resources diminish .
That hostility has led to this crisis, in prisons , CPS, probation, the court service and the physical court infrastructure , to defence services and especially recruitment and in policing. We might hope that the Government has just demonstrated that it understands that funding is the key to crisis resolution. We may also hope that unity is a principled reality, not only in the legal profession but across the piece, with court staff, probation officers and their Unions.
In the meantime our message to our members is to support one another, meet your clients’ needs and be ready to support your Association in the negotiations that lie ahead. However,  given the historical record we can expect the MOJ to recoup any AGFS concession from Solicitors .The cap of PPE has demonstrated an unprincipled opportunism .More cuts are in the budget air. The LGFS is to be renegotiated.
As the MOJ flees from its own proxy for value , PPE ,  the only certain prediction is that the crisis of funding in the criminal justice system will continue to unfold while Ministers indulge an infatuation with digital and virtual reforms for which no business case is made.
We await with eager anticipation confirmation from the MoJ that consultation with the Law Society re AGFS will begin as a matter of urgency particularly for Solicitor Advocates who at the time of the Jeffrey review were responsible for 40% of pleas and about a quarter of trial work .
Yours Sincerely
Greg Powell
President LCCSA