Margaret McDonald Ministry of Justice 102 Petty France London SW1H 9AJ Margaret.mcdonald@justice.gsi.gov.uk 15 New Bridge Street London EC4V 6AU 8 th August 2011 Dear Ms. McDonald THE CRIMINAL DEFENCE SERVICE (FUNDING) (AMENDMENT) ORDER 2011 THE COMMUNITY LEGAL SERVICE (FUNDING) (AMENDMENT No2) ORDER 2011 In response to the Funding Orders Consultation letter dated 13 th July 2011, I wish to convey my dismay at the decision of the Ministry of Justice ( MoJ ) to ignore the concerns and arguments raised in the responses of the Young Barristers Committee, the Bar Council, the Family Law Bar Association and the Criminal Bar Association to the consultation paper Proposals for the Reform of Legal Aid in England and Wales (CP 12/10) ( the consultation paper ). The Young Barristers Committee ( YBC ) made well founded and principled points in its 37 page response to the consultation paper and I adopt those points in this letter. While I do not seek to rehearse those arguments, it is important that the MoJ is aware of the impact that reductions on fees will have on the current and future profession. In short, the YBC said that: (1) The economic situation was understood. However, the government was invited to work with the Bar Council to increase efficiency and locate savings elsewhere without damaging legal aid; (2) The proposed cuts would diminish the quality of service provided to the legally aided client; (3) The proposed cuts would make it extremely difficult for young practitioners (i.e. under seven years call) to repay the debts incurred as part of their legal education; (4) The MoJ has failed to take into account the cuts that have already been made to legal aid; in particular the reduction of the AGFS by 13.5%. Failing to assess the impact of changes to the system before introducing new changes was a criticism levelled at the Legal Services Commission by the National Audit Office in 2009. It would appear that no lessons have been learned; (5) The number of young practitioners able and willing to practise in legal aid is already falling. The result of these cuts will be a profession that is less diverse than the public it serves.
The Criminal Defence Service (Funding) (Amendment) Order ( The Criminal Funding Order ) The Criminal Funding Order will effect the following changes to remuneration in the magistrates and Crown Court from October 2011: (1) an overall fee of 565 for either way cases where the defendant elects Crown Court and the case does not proceed to trial, but with the fee split between litigation and advocacy ( 362 and 203 respectively); (2) reduce Crown Court fees for cracked cases by 25%, leaving the fees for guilty pleas unaltered; (3) align the fees paid in Category A cases (murder, manslaughter and similar offences) with cases of rape and other serious sexual offences; (4) remove the distinction between cases of dishonesty based on the value of dishonest act(s) below 100,000; (5) remove the premium paid for magistrates courts standard fee cases in London; (6) for AGFS claims the sentencing hearing will be counted as one of the five standard appearances included within the Basic Fee, and (7) pay litigators in all cases with an estimated trial length of up to 60 days at the rates in the Litigators Graduated Fee scheme, rather than at Very High Cost Case rates. The criminal bar has already endured significant cuts of 13.5% to the AGFS. All fee reductions are felt most keenly by the youngest of any profession and these cuts have precipitated a general decline among the very junior end of the criminal bar. The government is well aware of the reduction in the number of pupillages available in criminal chambers; the number of pupils who wish to practice in publicly funded fields has also noticeably dropped. In the future, this trend will be exacerbated as poor remuneration for the young bar will mean that those who are not from higher socio economic backgrounds or those with debt to service will be dissuaded from publicly funded work. These fears will increase and affect greater numbers of people as university tuition fees rise. The diversity of the young bar, and ultimately the senior bar and the judiciary will inevitably be lessened. Furthermore, the brightest will be deterred from coming to the young bar. The government has argued that sufficient numbers of advocates and litigators will remain in the profession even if some do leave. However, the MoJ has given to no thought or analysis as to the quality of those remaining or entering the profession. Neither has consideration been given to the cost of delays, or an increased number of appeals resulting from a general decrease in the quality of the legal aid profession. The young criminal bar will be particularly adversely affected by: (1) the decision to the remove the distinction between cases of dishonesty based on a value of less than 100,000;
(2) the removal of the premium paid for magistrates court cases in London (I note that civil servants continued to be paid an enhanced salary to take account of London weighting); and (3) The decision to pay advocates a paltry 203 for guilty pleas or cracked trials where the defendant has elected Crown Court trial is disappointing to say the least. The latter decision ignores the response of the overwhelming majority of respondents 1 who argued that it was unfair to penalise defence representatives for a decision made by the defendant. It is particularly unfair to pay the same amount for a guilty plea at the plea and case management hearing as for a late guilty plea, perhaps on the day of trial. By that stage trial preparation will have been completed. There can be no valid argument for failing to pay for the additional work completed by this stage. A cracked trial fee is paid for cases committed by magistrates or sent to the Crown Court; in my view there is no justification for drawing a distinction between those cases and cases where the defendant has elected Crown Court trial. The YBC has argued and continues to argue that lawyers do not advise on plea depending on the level of fee they will receive. However, the government has responded that the current system of fees may discourage the defence team from giving early consideration of plea. 2 If that is what the government believes, then one wonders how the government believes the proposed fee system will encourage the defence team to act when the case approaches trial and a significant amount of work has been undertaken on such cases. Based on the government s analysis, the decision to pay the same amount regardless of the stage at which the case is terminated without trial, can hardly be described as rational. I invite the MoJ to reconsider its decision and to mitigate the unfairness of this proposal by increasing proportionately the fee for cases which crack in order to reflect the amount of work undertaken by the advocate and litigator. The whole of the profession will be adversely affected by this funding order and the decision to reduce fees for murder and manslaughter to those paid for rape is particularly inappropriate. It ignores the warning from the profession that this will remove the requirement for a high level of expertise and experience in such cases and fails to recognise the complexity, difficulty and demanding nature of such work. Finally, all criminal advocates have been astonished by the decision to remove fees for sentencing hearings. This was not a proposal that was contained within the consultation paper. The sentencing hearing is frequently a complex hearing, indeed, the sentencing regime in this country has often been decried by the Court of Appeal as overly complicated. The advocate is required to analyse convoluted legislation, case law, and sentencing guidelines. It is difficult to square this decision with the MoJ s stated aim to retain bolt on fees for hearings which normally raise genuinely complex or lengthy legal arguments. To equate the sentencing hearing with the plea and case management hearing is a stunning example of how the MoJ fails to understand the work conducted in criminal courts on a daily basis. 1 Reform of Legal Aid in England and Wales, Government Response, Annex G at p.204 2 Ibid. at p.208
The Community Legal Service (Funding) (Amendment No2) Order 2011 ( the Community Legal Service Funding Order ) The purpose of the Community Legal Service Funding Order is to: (1) reduce all fees payable in civil and family matters by 10%; and, (2) limit the level of enhancements that can be paid to solicitors in civil and family cases at 100% for cases heard in the Upper Tribunal High Court, Court of Appeal and Supreme Court and 50% for all other proceedings. Those matters raised in the responses of the YBC, the Civil Legal Aid Sub Committee and the Family Law Bar Association ( FLBA ) to the consultation paper are equally valid now. The FLBA in particular has raised deep concerns about the implications of these proposals on families and children at risk of serious physical or emotional harm, and other vulnerable members of society and their ability to access quality legal advice. The impact on the courts, the profile of the legal profession (and ultimately the judiciary) and the family justice system as a whole is also a cause for concern. Furthermore, the impact on the Family and Civil legal aid profession will be equally as serious as that inflicted on the Criminal bar. In particular, a reduction in the number of pupillages in Family work has been reported, as has a reduction in the numbers of those prepared to train in and undertake legal aid work. As a result, the public will have fewer experienced practitioners available to advise and represent them on these matters. The cuts also fail to take into account the number of hours of unpaid work already undertaken by those at the family and civil bar. Market Sustainability Section 25(3) of the Access to Justice Act 1999 requires the Lord Chancellor to ensure there is a sufficient supply of competent providers when setting rates of remuneration for legal aid work. Many responses to the consultation paper highlighted the fragility of the legal aid market. The functioning of the system relies on the already strained goodwill of the practitioners who practice within it. Further cuts will drive practitioners away from publicly funded work a trend which has already begun to take shape. In short, these cuts jeopardise the sustainability of the market. The government acknowledges that there has been a reduction in the number of providers dealing with civil and family legal aid over the past few years a disquieting decrease of 23% between 2006/07 and 2009/10. Even if part of that reduction is due to mergers in this area, it is an indication that fees are so low that providers are leaving this area of work. This is the case even before the introduction of the proposed 10% cuts. The MoJ states that it does not believe that these trends have affected the ability of the public to obtain legal aid when they require it but puts forward no evidence in support of that statement. 3 The fact that those firms identified to have left this area of work were among the smallest 25% of legal aid providers 4 is of concern for communities outside large cities and is evidence that the legal aid deserts are beginning to emerge. 3 Reform of Legal Aid in England and Wales, Government Response, at p196. 4 Ibid, at p.197
Likewise for criminal providers, the government reports a decline in active providers of around 14% between 2006/07 and 2009/10. 5 The government is unable to say whether the exits were as a result of a lack of profitability or merger the latter is unlikely to account for all exits but even if it accounts for some, presumably lack of profitability played a part in the decision to merge. Those CJS areas with the largest decreases are generally rural areas. 6 This is further evidence that rural communities are vulnerable to the emergence of advice deserts. Nevertheless, the government states that it does not believe that the current rate of exit indicates a threat to delivery or the sustainability of suppliers. Again, the government does not support that statement with any evidence and again, the government does not provide any analysis of the quality or competency of providers who remain or who are likely to enter the profession after the latest round of cuts. It seems to me that the MoJ has failed to have proper regard to the duty imposed on it by section 25(3) of the Access to Justice Act. Perhaps the government s attitude towards that duty is best exemplified by the fact that it now seeks to repeal this section without inserting any similar duty within the Legal Aid, Sentencing and Punishment of Offenders Bill. However, of most concern is the statement that the government believes the market to be sustainable because it expects legal aid work to be carried out by junior practitioners who gradually increase the proportion of non legally aided work that they undertake, moving into more lucrative areas as they increase their experience. 7 This statement demonstrates that the government has either not taken the time to investigate the advocacy market properly or simply does not understand it. Such a superficial analysis of the sustainability of the legal aid market is terrifying, both for the public and for the profession. The MoJ appears to have wholly misunderstood the nature of legal aid work. The fact that the litigant qualifies for legal aid does not make his or her case any the less complex than privately funded matters. The legal aid market requires the full gamut of practitioners, ranging from relatively junior to experienced junior to Queen s Counsel. If the government was correct in its analysis, it is likely that there would be insufficient legal aid practitioners available to service the number of legal aid cases. It would appear that the MoJ is happy to encourage the formation of a two tier justice system with a gulf between the quality of service provided to the publicly funded and the privately funded sector. It is the implied acknowledgement that this will be the result of these reforms to legal aid and the tacit complicity of the government in the destruction of the principle of equal access to justice to all that is the most worrying aspect of these reforms. Yours sincerely NICHOLA HIGGINS Chairman ~ Young Barristers Committee 5 Ibid, at p.197 6 Ibid, at p.198 7 Ibid, at p.199 paragraph 24