THIS IS THE TEXT OF A LETTER FROM A KENT SOLICITOR IN HIGH STREET PRACTICE IN THANET, TO HIS LOCAL CONSERVATIVE MP, AFTER A MEETING IN HER SURGERY.
IT MUST BE TYPICAL OF THE STARK ISSUES FACED BY THE SOLICITORS’ PROFESSION NATIONWIDE.
IT IS NOT JUST THE “FAT CATS” AT THE BAR WHO ARE TRYING TO DEMONSTRATE TO THIS GOVERNMENT THE NATURE AND EXTENT OF THE DISASTER THEY ARE ABOUT TO FOIST ON THE PUBLIC.
THE LETTER WAS WRITTEN BEFORE TODAY’S UNCHALLENGED ARTICLE WHICH THE TIMES HAVE PUBLISHED, SETTING OUT THE LORD CHANCELLOR’S CURRENT “ARGUMENTS.” NONETHELESS IT COVERS MANY OF THEM.
THE CRIMINAL BAR ASSOCIATION AGREES ENTIRELY WITH WHAT OLIVER KIRK HAS TO SAY. WE BELIEVE AND HOPE THAT THE VAST MAJORITY OF SOLICITORS SHARE HIS VIEWS AND FEARS. WE WELCOME SUPPORT FROM SOLICITORS WHICH WE IN TURN WILL DO OUR BEST TO RECIPROCATE.
WE ARE ONLY TOO WELL AWARE OF DIVISIONS IN THE PAST. BUT NOW, WE ARE WHERE WE ARE, AND WILL FIGHT TOGETHER WITH THEM.
PLEASE DO FEEL FREE TO RESPOND TO THIS HERE, AS WELL AS CIRCULATING IT AS WIDELY AS POSSIBLE
“Dear Laura, (Laura Sandys MP)
Thank you for taking the time to see me and discuss Legal Aid last week, following the release of the Government Consultation.
I have quite a lot to tell you, in the hope that you will understand and share my concern at the proposals, and that you will be able effectively to intercede with the Minister, in the hope that these proposals will be fundamentally reviewed before implementation, and a better, more efficient and just solution may be found.
At present, Criminal Defence Legal Aid is provided by 1400 firms across England and Wales. In Kent there are (I think) approximately 50 firms. These firms range from sole practitioners, to small to medium sized businesses. In Kent, there are no firms that cover the whole County effectively. In Thanet, there are 2 firms with offices, my own (BKRW) in Ramsgate, and Kent Defence who have an office in Cliftonville. There are another 10 or so firms who are on the local duty solicitor rotas, they have offices in East Kent also.
The Government makes much of the increase in Legal Aid spending over the last 10 years, and points to a need to be efficient. I do not disagree that efficiencies may be required, but it is worth noting that, although spending on Legal Aid has gone up, the amounts paid to lawyers to deal with criminal cases have not been increased since 1997. This indicates that the problem is not the costs of the lawyers, but the volume of work being done by those lawyers.
It is true that Prison Law advice has been a growth area, but also consider that over the last period, there have been significant new offences introduced, and new areas of evidence which can now be admitted at trial, which could not be previously (bad character and hearsay for example). These factors increase costs.
Out of a budget of £2 billion, the Government wants to save £220 million. Whist this is a significant sum, the method by which it is proposed to save this sum strikes at the heart of our Criminal Justice System, and will shake public confidence in that System. Please, bear in mind that the Rule of Law, and public confidence in the justice system is the cornerstone of a democratic society.
By necessity, I paraphrase, (the consultation document is over 160 pages long!).
The Government will invite tenders for Criminal Defence services for each area of the UK.
One such area is Kent. It is proposed that there should be 5 contracts awarded in this County.
The Government proposes to guarantee volume of work to these 5 “super firms” by removing the right of a legally assisted person to nominate a particular solicitor. Each detainee or person charged will have a solicitor assigned to them.
Of course none of this prevents a person choosing to pay his own lawyer privately, but if they do (assuming they can find lawyer happy to be instructed by a person in custody) their legal costs will not be refunded if they are never prosecuted, and will only be refunded in (small) part, should they be found not guilty .
1) In our meeting you asked how other countries manage to spend less on Legal Aid than we do.
I am not an international jurist, but it seems to me that the reason is that our European Partners have a fundamentally different legal system. Most have inquisitorial systems, most have very few cases decided by juries. Those that do have juries, have juries that retire with Judges to assist in their deliberations. Most do not recognise, as we do, the differing roles of solicitors and barristers/advocates. The short point is that comparing our Legal Aid spend with other countries is not meaningful. It fails to take account of the differences between our legal systems.
2) The proposal to award only 5 contracts for Kent and to guarantee work by removing consumer choice.
These proposals are bad for Clients and bad for lawyers.
The effect will be that all of the 50 or so firms currently supplying legal services in Kent will need either to expand or merge with others to bid for contracts covering a wide geographical area. The proposal is that bids must be made by October 2013 and contracts start October 2014. This is an astonishing pace of change, and it seems very likely that chaos will be the result.
Winning bidders will have to centralise, and keep overheads to a minimum. This is likely to mean that there will be large areas where there are no lawyers for clients to go and see. It seems most unlikely that any winning bidder would have an office in Thanet, In fact it is more likely that there would be one centrally based office for Kent in, say, Maidstone.
It is very important that a defendant or suspect in a criminal case has confidence in his lawyers. A lack of such trust leads to delays. It takes a long time to gain a reputation. We as lawyers work hard to gain the trust both of our clients and the Courts. The Proposals to remove client choice of lawyer will remove that essential relationship between lawyer and client.
The Proposals will create inefficiency. Suppose that I represent a man arrested for his 10th offence. I have represented him for years. I represented his father too. When I go and see him in custody, he knows and trusts me. He will accept my advice more readily than that of a stranger. Given that I know him and his background fully, I can interview him far more quickly than I could if he was a new Client whom I had never met before.
Many of those passing through the system are repeat offenders. Their “own solicitors” know if they have drink/drug problems. We retain and can re-use Mental Health assessments. We know when our Clients might be a risk to themselves or others.
All of this will be lost if consumers are required to have a lawyer appointed to them. There will be significant duplication of work, and inefficiency.
The Proposals will be bad for quality. It seems inevitable that whoever gets the contracts, they will do so with a view to making money. How will they do that? Well, by removing customer choice, the Government is also removing any capacity for the firm to expand, to attract new or even repeat business.
There will, under these proposals be no choice (compare schools, health care?) and no competition between providers. The lawyers get paid the same, whether they are good, bad whether they work hard or not. They cannot lose clients, they cannot gain clients.
Furthermore, given that the winning bidder will receive a fixed and finite amount of money to provide their services, there will be a pressure to maximise profit by employing cheap, and inexperienced lawyers. This is in itself counter-productive, after all, an experienced lawyer is more likely to give a client realistic advice about his prospects, and less likely to detain the Court with poorly thought out submissions.
There must be a danger that a great number of sensible, experienced solicitors will find themselves unable to gain employment doing publicly funded work. They will either leave the profession, have to retrain, or do privately funded criminal defence, (which is a rare thing indeed in Thanet). The consequences therefore would be a loss of skill and experience resulting in inefficiency and the creation of what is likely to be perceived as a two tier service. Those who can afford to pay their lawyers (and lose their money, even if they are falsely accused) will get the best. Those most vulnerable and without the means to pay will be appointed a cheap alternative.
A fixed fee system rewards efficiency by the provider, while sacrificing quality for the consumer. Lawyer fees are currently predicated either by time spent or by a combination of page counts and matter type. If people are paid the same amount, no matter how much work they do, there is a danger that they will seek to do as little as possible. Corners will be cut, papers will not be properly considered, witnesses may not be interviewed. This is a further way in which long term costs will in fact be driven up. Poorly prepared defence cases result in delays and in convictions. Convictions result (very often) in prison sentences and Appeals.
A further insidious proposal is that Advocates should be paid more if our Clients plead guilty early. Imagine being arrested, you cannot have the lawyer of your choice, and then you are told that the one appointed will only make a reasonable living if you plead guilty! Confidence inspiring? NO.
THE WIDER IMPLICATIONS
It seems to me that if these proposals go through, there will be carnage. In the run up to the award of contracts, banks may decide to remove firms’ overdraft facilities, and businesses will fail. There are likely to be considerable numbers of redundancies of solicitors, clerks, secretaries, support staff and their suppliers. Consider that the scale of chance required is huge. Firms currently operating have leases on or even own premises. They simply cannot up sticks and leave in 18 months.
OUR JUSTICE SYSTEM IS CURRENTLY RIGHTLY REGARDED AS ONE OF THE BEST IN THE WORLD. IT WILL NO LONGER BE IF THESE PROPOSALS GO THROUGH UNALTERED.
Thank you for taking the time to read this, I have (believe it or not) tried to be succinct and not indulge in hyperbole, but instead to concentrate on real and tangible effects. I would of course be interested both to hear your views and of any progress you are able to make in your dealings with Mr Grayling.