Never in the field of human conflict has so much evidence been so ignored by one man. After 18,000 hostile responses to two consultations, at least two perturbing research papers (Otterburn and KPMG, see later), endless unsympathetic meetings and intense doubts expressed in the media and in both Houses of Parliament the Lord Chancellor chooses to ignore this furore. He decides to press on regardless with his entirely unworkable proposals which will destroy access to Justice in any meaningful sense.
Chris Grayling says he has ‘listened hard’ to the profession.
If anything, disregarding all this unanimous expert opinion (search in vain for a summary of opinion in favour) the final proposals are far worse than anyone could hardly have imagined. I wonder if Mr Grayling has actually read the two most recent reports by Otterburn and KMPG.
- You can download the Otterburn and KPMG reports HERE.
I have, and there is nothing in those two reports that could remotely encourage Mr Grayling to pursue these frankly bizarre proposals!
How much do I loathe these? Let me count the ways.
Firstly, there is the concept of a two tier criminal legal aid profession. All firms of criminal legal aid solicitors demonstrably under financial pressure now will be under the intense pressure of having to cope with the immediate first cut of 8.5% (followed in 2015 with a similar cut totalling 17.5%) without any compensating market consolidation. How do those hoping to win a duty contract gear up financially for the required massive expansion necessary to cover their often vast criminal justice areas?
How will these duty firms cope with the unfortunate ‘own client firms only’ who without a duty contract will cling on like the walking dead making the duty firms chance of survival almost impossible. How long will these latter firms survive without replenishing their client base with new work converted from duty to own client status by their skill and hard work? KMPG say ‘given the importance of duty provider work in establishing relationships between new clients and solicitors, anecdotal evidence suggests that own client work for those providers without duty contracts will be likely to decline over time.’
But it is far more extraordinary than that. The whole of these proposals is predicated upon a bogus and deceitful MOJ fantasy.
Believe it or not the whole structure of these proposals is built upon the statistical assumption that providers will give up 50% of their own client work (see the Otterburn report).
On what planet do they think hard pressed duty firms voluntarily will surrender 50% of their own clients to the surrounding and equally pressed own client firms in their area. Would a super market tell a loyal customer to kindly go to a rival as they had exceeded their 50% quota that month? Of course not! They will quite rightly cling on to all work. And yet that is the strange statistical basis upon which this response is delivered. It is clear from reading the two research reports that their authors were instructed to deliver their reports incorporating this 50% aspect. This figure is plucked entirely out of the air by the MOJ and they were warned by the profession that there was no basis for that assumption of a 50% fall out of work from duty firms. To proceed on such a dishonest statistical basis is wholly wrong as well as attempting to offer false hope to own client only firms who know that they will never benefit from this fantasy fall out.
However, does this not prove that the Lord Chancellor does not really learn from mistakes? Having recently been forced to abandon the plan to abolish client choice here he is again minimising the importance of client choice by suggesting that duty firms treat 50% of clients as commodities to be passed around as he fails again to grasp that client choice is the most effective arbiter of quality. But He is not interested in quality is he? Just cost cutting irrespective of the damage this will do to our criminal justice system and our international reputation
The Government says ‘We believe the timescale, although challenging for some is nonetheless achievable.’ It certainly is not. This is recognised in Otterburn who says ‘we have concerns about whether these firms are sufficiently financially robust to do so (survive) if the proposed fee cuts are implemented in the proposed timescale.’ (Otterburn, page 54)
There are also the immense difficulties for duty firm covering vast criminal justice areas. The MoJ says the travelling time between the two delivery points (police station, magistrates’ court, Crown Court) that are furthest apart is a maximum limit of 1.5 hours travelling time.
One colleague writes: ‘One procurement area – Haverfordwest to Welshpool – 3.5 hours travel, 172 miles’; and another writes: ‘I.5 hours? Not unless Devon has shrunk in all this rain. Barnstaple remains decidedly more than 1.5 hours from Torquay and Plymouth. It’s referred to in the paper as a point made but clearly ignored as inconvenient’
But actually leaving aside the horribly incorrect statistical assumptions made by the MOJ what is more horrific are the level of cuts. In many areas the level of the cuts are far more than the proposed 17.5%.
For example one solicitor writes: ‘In our area in which there is very small volume of work, there are six firms on the duty scheme; with a 17.5 % cut we have worked out we will, with extra bit of a volume, still have a cut of 5% – but the police station cut is 28% so we will face a cut on this, after extra volume, of nearly 14%.’
Many are facing real cuts which under this scheme will not be ameliorated by extra volume. Indeed Otterburn reveals that the growth required to compensate for the cuts is 43% in London, 77% in urban areas and an astonishing 119% rural areas! The report says ‘the rates of overall growth – of both own client and duty work are challenging in urban and rural areas.’ That is a piece of measured understatement if ever there was one.
What is astonishing is that Mr Grayling turned his back on the original Law Society proposals that offered quality driven planned consolidation and savings which were supported by all the practitioner Groups and instead preferred these friendless proposals. I urge the Lord Chancellor to look at that proposal again before things get progressively out of control as the profession is united in its opposition to his unworkable scheme and will not accept it.
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts